                                                         FILED
                                             United States Court of Appeals
                 UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                   January 12, 2017
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                    No. 16-8078
v.                                         (D.C. No. 1:16-CV-00173-SWS
                                            & No. 2:13-CR-00217-SWS-1)
TIMOTHY LEE PITT,                                    (D. Wyo.)

       Defendant-Appellant.

                       _________________________________

                 ORDER DENYING A CERTIFICATE OF
                           APPEALABILITY
                     _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

     Mr. Timothy Lee Pitt was convicted of federal drug offenses,

including the use of a firearm during and in relation to a drug trafficking

crime. See 18 U.S.C. § 924(c)(1)(A). For this crime, Mr. Pitt obtained a

mandatory sentence enhancement of 60 months. Following sentencing, Mr.

Pitt moved to vacate his 60-month sentence enhancement, invoking 28

U.S.C. § 2255.

     The district court denied this motion, and Mr. Pitt wants to appeal.

To do so, he seeks a certificate of appealability and leave to proceed in

forma pauperis. We decline to issue a certificate of appealability, dismiss

the appeal, and deny leave to proceed in forma pauperis.
      To obtain a certificate of appealability, Mr. Pitt must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2012). Mr. Pitt would meet this standard only if “jurists of

reason could disagree with the district court’s resolution of his

constitutional claims or . . . jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

      In his motion, Mr. Pitt argues that 18 U.S.C. § 924(c)(1)(A) is void

for vagueness under Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551

(2015). Johnson held that the residual clause of the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was void for vagueness. Id. at

__, 135 S. Ct. at 2563.

      Mr. Pitt’s sentence enhancement was based on the use of a firearm

during a drug trafficking offense under 18 U.S.C. § 924(c)(1)(A). Section

924(c)(1)(A) provides a mandatory sentence enhancement for the use of a

firearm in relation to any “crime of violence” or “drug trafficking crime.”

But Mr. Pitt’s sentence enhancement was based on a “drug trafficking

crime,” not a “crime of violence,” so Johnson does not apply. See United

States v. Teague, No. 16-7056, __ F. App’x __, 2016 WL 4400069, at *1-2

(10th Cir. Aug. 17, 2016) (unpublished) (denying a certificate of

appealability because Johnson did not affect the sentence enhancement

under 18 U.S.C. § 924(c) for possessing a weapon during and in relation to

                                       2
a “drug trafficking crime”). 1 Because Johnson does not apply, jurists could

not reasonably debate the correctness of the district court’s disposition. In

these circumstances, we decline to issue a certificate of appealability and

dismiss the appeal. In light of the absence of a reasonably debatable appeal

point, we also deny leave to proceed in forma pauperis. See 28 U.S.C.

§ 1915(a)(3); Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1079

(10th Cir. 2007).

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




1
      Teague is persuasive, but not precedential.
                                      3
