              Case: 16-14922    Date Filed: 11/22/2017   Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-14922
                            Non-Argument Calendar
                          ________________________

    D.C. Docket Nos. 1:16-cv-00063-DHB-BKE; 1:06-cr-00108-DHB-BKE-1



NATHAN JONES,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                               (November 22, 2017)

Before TJOFLAT, HULL and NEWSOM, Circuit Judges.

PER CURIAM:

      Nathan Jones, proceeding pro se, appeals from the district court’s dismissal

of his 28 U.S.C. § 2255 motion to vacate his sentence. We granted a certificate of
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appealability on the issue of whether the district court erred in dismissing Jones’s

§ 2255 motion on the ground that Johnson v. United States, 576 U.S. ___, 135 S.

Ct. 2551 (2015), does not apply to the Sentencing Guidelines in light of then-

pending Beckles v. United States, 580 U.S. ___, 137 S. Ct. 886 (2017). After

review, we affirm.

                                I. BACKGROUND

      Pursuant to a written plea agreement in 2006, Jones pled guilty to one count

of bank robbery, in violation of 18 U.S.C. § 2113(a).

      The presentence investigation report (“PSR”) listed Jones’s prior felony

convictions, including: (1) 1992 Massachusetts convictions for assault with a

dangerous weapon and armed robbery; (2) 1992 Massachusetts convictions for

possession with intent to distribute cocaine and conspiracy to possess with intent to

distribute cocaine; (3) 1994 Massachusetts convictions for possession with intent

to distribute heroin and possession with intent to distribute cocaine; (4) a 2002

Massachusetts conviction for assault and battery; (5) a 2002 Massachusetts

conviction for domestic assault and battery; (6) a 2005 Georgia conviction for

burglary.

      The PSR applied a career-offender enhancement under U.S.S.G. § 4B1.1

because Jones had prior convictions for crimes of violence and serious drug

offenses, which increased his offense level from 19 to 32. After a three-level


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reduction for acceptance of responsibility, Jones had a total offense level of 29.

Based on a total offense level of 29 and a criminal history category of VI, Jones’s

advisory guidelines range was 151 to 188 months’ imprisonment.

       On April 30, 2007, the district court sentenced Jones to 151 months’

imprisonment. Jones did not file an appeal.

                                      II. DISCUSSION

       A prisoner in federal custody may file a motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255, “claiming the right to be released

upon the ground that the sentence was imposed in violation of the Constitution or

laws of the United States.” 28 U.S.C. § 2255(a).1

       On May 12, 2016, Jones filed a § 2255 motion challenging his sentence

based on Johnson.

       Johnson involved the Armed Career Criminal Act (“ACCA”), which

imposes heightened prison sentences for certain defendants with three prior

convictions for either violent felonies or serious drug offenses. The ACCA defines

the term “violent felony” as any crime punishable by a term of imprisonment

exceeding one year that:



       1
         In a proceeding on a § 2255 motion to vacate, set aside, or correct sentence, the district
court’s factual findings are reviewed for clear error, and legal issues are reviewed de novo. Lynn
v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). A party seeking to raise a claim or issue
on appeal must plainly and prominently discuss it. Brown v. United States, 720 F.3d 1316, 1332
(11th Cir. 2013).
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      (i)    has as an element the use, attempted use, or threatened use of
             physical force against the person of another; or

      (ii)   is burglary, arson, or extortion, involves use of explosives, or
             otherwise involves conduct that presents a serious potential risk
             of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred

to as the “elements clause,” while the second prong contains the “enumerated

crimes” and, finally, what is commonly called the “residual clause.” United States

v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).

      In Johnson, the Supreme Court held that the residual clause of the ACCA

was unconstitutionally vague because it created uncertainty about how to evaluate

the risks posed by a crime and how much risk it takes to qualify as a violent felony.

Johnson, 135 S. Ct. at 2557-58, 2563. The Supreme Court stated that Johnson did

not affect any of the ACCA’s other provisions. Id. at 2563. On April 18, 2016, the

Supreme Court held that Johnson announced a new substantive rule that applies

retroactively to cases on collateral review. Welch v. United States, ___ U.S. ___,

136 S. Ct. 1257, 1265 (2016). We first conclude that Jones’s sentence was not

enhanced by the ACCA. Thus, we examine only Jones’s claim that Johnson

invalidates his career-offender enhancement under the Guidelines.

      At the time of Jones’s sentencing, the Sentencing Guidelines classified a

defendant as a career offender if he: (1) was at least 18 years old at the time of the

offense of conviction; (2) the offense of conviction was either a crime of violence
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or a controlled-substance offense; and (3) he had at least two prior felony

convictions of either a crime of violence or a controlled-substance offense.

U.S.S.G. § 4B1.1(a) (2006). The Guidelines defined “crime of violence” as any

offense under federal or state law that was punishable by imprisonment for more

than one year and:

      (1)    has as an element the use, attempted use, or threatened use of
             physical force against the person of another, or

      (2)    is burglary of a dwelling, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents a
             serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (2006).

      In September 2015, this Court determined that the Guidelines could not be

void for vagueness and that Johnson’s holding therefore did not apply to career-

offender enhancements under the advisory Guidelines. United States v. Matchett,

802 F.3d 1185, 1193-96 (11th Cir. 2015). In March 2017, the Supreme Court held

that the advisory Guidelines are not subject to a vagueness challenge under the Due

Process Clause and that the residual clause in § 4B1.2(a)(2) thus is not void for

vagueness. Beckles, 137 S. Ct. at 895.

      On the merits, Jones’s Johnson claim challenging the career-offender

enhancement to his sentence under the advisory Guidelines is foreclosed by

Beckles and Matchett. Accordingly, we affirm the district court’s dismissal of

Jones’s § 2255 motion to vacate his sentence.
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AFFIRMED.




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