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

                             FOR THE TENTH CIRCUIT                            April 5, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-1282
                                                (D.C. Nos. 1:16-CV-01111-LTB and
JASON GREER,                                          1:02-CR-00184-LTB-1)
                                                             (D. Colo.)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Jason Greer appeals from the district court’s judgment denying him relief on

his second motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence.

Greer sought to invalidate his sentence to the extent that it was based on his status as

a career offender under the advisory Sentencing Guidelines. Greer’s claim is

foreclosed by the Supreme Court’s decision in Beckles v. United States, __ U.S. __,

137 S. Ct. 886 (2017). Consequently, exercising jurisdiction under 28 U.S.C. § 1291,

we affirm the district court’s judgment.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       “Greer was convicted following a guilty plea of one count of armed bank

robbery, in violation of 18 U.S.C. § 2113(a) and (d). The district court sentenced him

to 188 months’ imprisonment, followed by a five-year term of supervised release.”

United States v. Greer, 85 F. App’x 181, 181-82 (10th Cir. 2004) (Greer I)

(unpublished). The district court based Greer’s sentence, in part, on a finding that he

qualified as a career offender under the advisory Sentencing Guidelines because he

had at least two prior felony convictions for crimes of violence. See id. at 182; U.S.

Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2002) (USSG).

We dismissed his direct appeal. See Greer I, 85 F. App’x at 184. And the district

court denied his first § 2255 motion.

      In 2016, Greer moved for authorization to file a second § 2255 motion based

upon the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551

(2015). Johnson voided, in part, the definition of a qualifying “violent felony” used

for sentence enhancement under the Armed Career Criminal Act (ACCA). Id. at

2563. The Supreme Court held that the “residual clause” in the definition—covering

crimes “involv[ing] conduct that presents a serious potential risk of physical injury to

another,” 18 U.S.C. § 924(e)(2)(B)(ii)—violated the constitutional prohibition

against vague criminal laws and that an increased sentence based on that clause

violates a defendant’s right to due process. Johnson, 135 S. Ct. at 2557, 2563. In

Welch v. United States, __ U.S. __, 136 S. Ct. 1257, 1268 (2016), the Court made

Johnson’s holding retroactive to cases on collateral review.



                                           2
      This court extended Johnson’s holding to identical residual-clause language

previously used to define “crime of violence” in the career-offender guideline, USSG

§ 4B1.2(a)(2). See United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir.

2015). We authorized Greer to file a second § 2255 motion challenging his

career-offender sentence because at least one of his prior convictions qualified as a

crime of violence under the residual-clause definition in § 4B1.2(a)(2). See In re

Greer, No. 16-1179, slip op. at 1 (10th Cir. May 13, 2016); see also In re Encinias,

821 F.3d 1224, 1226 (10th Cir. 2016) (challenge to a sentence that was enhanced

based on the residual clause in § 4B1.2(a)(2) is “sufficiently based on Johnson to

permit authorization under § 2255(h)(2)”).

      The district court denied Greer’s second § 2255 motion. It held that he still

had at least two prior convictions that qualified as crimes of violence as defined in

the Guidelines without applying the residual clause. The district court granted Greer

a certificate of appealability. “We review the district court’s legal rulings on a

§ 2255 motion de novo and it findings of fact for clear error.” United States v.

Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (internal quotation marks and alteration

omitted).

      Greer argues that his prior conviction for assault on a peace officer under

Colorado law is not a crime of violence because that offense does not “ha[ve] as an

element the use, attempted use, or threatened use of physical force against the person

of another,” as required by USSG § 4B1.2(a)(1). We need not decide this question.

After we docketed Greer’s appeal, the Supreme Court issued its decision in Beckles.

                                            3
Like Greer, the petitioner in Beckles sought to invalidate his sentence to the extent

that it was based on § 4B1.2(a)’s residual clause. See Beckles, 137 S. Ct. at 891.

Contrary to our decision in Madrid, the Supreme Court rejected the petitioner’s claim

that the career-offender residual clause is void for vagueness under the reasoning in

Johnson. See id. at 895. The Court distinguished its holding in Johnson, explaining:

      Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible
      range of sentences. To the contrary, they merely guide the exercise of a
      court's discretion in choosing an appropriate sentence within the statutory
      range. Accordingly, the Guidelines are not subject to a vagueness
      challenge under the Due Process Clause. The residual clause in
      § 4B1.2(a)(2) therefore is not void for vagueness.
Id. at 892. Thus, Beckles forecloses any claim that a Guidelines provision is subject

to a vagueness challenge. Greer’s claim that his sentence is invalid because

§ 4B1.2(a)(2)’s residual clause is void for vagueness fails as a matter of law.

      The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Harris L Hartz
                                            Circuit Judge




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