                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 16, 2015
                                     PUBLISH                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 14-3248
 v.

 JOSEPH V. MULAY,

       Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
           (D.C. Nos. 5:14-CV-04092-SAC; 5:01-CR-40033-SAC-1)


                               PUBLISHED ORDER


Before KELLY, SEYMOUR, and MATHESON, Circuit Judges.


      Defendant-Appellant Joseph Mulay appeals from the district court’s denial

of a joint motion by the parties to vacate his sentence, 28 U.S.C. § 2255. 1 R. 41-

62; see also United States v. Wetzel-Sanders, No. 04-40156-SAC, 2014 WL

5502407, at *1 (D. Kan. Oct. 30, 2014) (discussing Mr. Mulay’s motion). The

district court denied the motion, but granted a certificate of appealability (COA).

28 U.S.C. § 2253(c)(1)(B). The district court did not specify a constitutional

issue in granting a COA. We remand to the district court to consider the issue
and specify a constitutional issue.



                                      Background

      In 2001, Mr. Mulay pled to three counts of drug and gun crimes. The

presentence report (PSR) calculated his sentence with reference to the career

offender provision (in part) on the basis of a 1995 state conviction for criminal

threat for which Mr. Mulay received a 9-month suspended sentence. 1 In 2002, the

district court departed from the career offender range, and sentenced him (under

the then-mandatory guidelines) to 180 months’ custody, followed by a required

consecutive 60-month term for possessing a firearm in furtherance of a drug

trafficking crime. There is no question that Mr. Mulay’s 240-month sentence was

below the statutory maximums of life (Count 7) and five years (Count 8) on the

two drug counts plus the consecutive 60-month term on the gun count. 1 R. 11; 2

R. 70. On appeal, Mr. Mulay challenged whether his conduct pertaining to the

criminal threat conviction qualified as a crime of violence. We affirmed. United

States v. Mulay, 77 F. App’x 455 (10th Cir. 2003).

      On September 18, 2014, the government and Mr. Mulay filed a joint § 2255

motion to vacate the sentence on the basis of United States v. Brooks, 751 F.3d


      1
         The state judgment reflects a presumptive range of 7-9 months
imprisonment; the parties maintain that an upward departure simply was never at
issue; the state did not seek it; no notice was given, and there appear to be no
grounds which would have supported it. 1 R. 36.

                                         -2-
1204 (10th Cir. 2014). 1 R. 16-22. They argued that after Brooks one of the

underlying convictions for career offender status (a conviction for criminal threat)

would not qualify as a crime of violence under 28 U.S.C. § 994(h)(2)(A) and

U.S.S.G. § 4B1.2(a) because it was not punishable by more than one year of

imprisonment. 1 R. 20. They pointed out that had the career offender

enhancement not applied, Mr. Mulay would have been subject to a guideline

range of 168-210 months rather than 262-327 months (under either formulation an

additional 60-month sentence also was required). Id. at 17-18. The district court

was not persuaded that Brooks applied, a decision that both parties contend is

wrong. 2 Aplt. Br. at 7-8; Aplee. Br. at 10-11.

      2
         The district court held that Brooks only applied to state convictions after
June 6, 2002, when Kansas eliminated a trial court’s discretion to impose an
upward departure from a presumptive sentence and instead provided for new
procedures and a jury finding. 1 R. 42-43; see Brooks, 751 F.3d at 1206.
According to the district court, because a trial court had the power to depart
upward from a presumptive sentence before June 6, 2002, the maximum sentence
theoretically possible controlled. The district court further held that Brooks
revived the rule of United States v. Arnold, 113 F.3d 1146 (10th Cir. 1997). In
Arnold, the panel held that “what matters is not the actual sentence which the
appellant received, but the maximum possible sentence” had there been an upward
departure. Id. at 1148.

       While it is true that in 1995 a Kansas trial court might depart upward after
notice to a defendant, nothing suggests that Mr. Mulay was notified of a
departure. 1 R. 25-32. The trial court consequently could not depart upward
when sentencing Mr. Mulay. Instead, Mr. Mulay was sentenced based upon a
presumptive range of 7-9 months and received a nine-month suspended sentence.
Id. at 28-29. Thus, were Brooks applied, Mr. Mulay would not have two
qualifying felonies. See Brooks, 751 F.3d at 1210-11. Contrary to the district
court’s analysis, our describing the Kansas scheme as “rather unusual,” id. at
1205, or noting that Kansas adopted a different procedure for departures in 2002,

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      The joint motion stated that the government waived any procedural hurdles

that might apply to § 2255 relief, so we have no occasion to consider the issue of

time bar, § 2255(f). 1 R. 21 n.13. The parties reminded the district court that it

would be an abuse of discretion to consider a procedural bar waived by the

government, citing Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012). On appeal,

the government has second thoughts. It now argues that Mr. Mulay’s claim is not

cognizable in a § 2255 action because it involves non-constitutional sentencing

error and urges us to follow United States v. Trinkle, 509 F. App’x 700 (10th Cir.

2013), an unpublished case with similar facts. In Trinkle, a panel of this court

determined that a similar challenge (applying the career offender provision to a

criminal threat conviction) could not be the basis for a constitutional claim as

required for a COA. Id. at 702. Having raised the issue of a non-compliant COA,

the government argues that Mr. Mulay cannot demonstrate a fundamental defect

resulting in a complete miscarriage of justice that would allow this case to

proceed. Aplee. Br. at 13-14.



                                     Discussion

      The district court granted a COA in this matter on the basis that the

sentencing issue in this case was a fluid area of Tenth Circuit law and was worthy



does not alter the fundamental holding of Brooks that a court must look at the
characteristics of a particular defendant, not a worst-case hypothetical one.

                                        -4-
of greater consideration. 1 R. at 62. The district court’s order, let alone its grant

of a COA, does not mention due process. The grant of a COA is necessary to

appeal and it is jurisdictional. 28 U.S.C.§ 2253(c)(1); Gonzalez v. Thaler, 132 S.

Ct. 641, 649 (2012). The statute conditions the grant of a COA on “a substantial

showing of the denial of a constitutional right” and specifying the issues, 28

U.S.C. § 2253(c)(2) & (3), but these requirements are not jurisdictional.

Gonzalez, 132 S. Ct. at 649. That said, we remain conscious of the requirements

of § 2253(c)(2) & (3), even if they are not jurisdictional. Gonzalez, 132 S. Ct. at

651 (court of appeals must address a defective COA); Spencer v. United States,

773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). Though a § 2255 motion may be

based upon a variety of grounds, an appeal of the denial of such a motion requires

an underlying constitutional claim. United States v. Shipp, 589 F.3d 1084, 1087

(10th Cir. 2009); United States v. Christensen, 456 F.3d 1205, 1206 (10th Cir.

2006); United States v. Gordon, 172 F.3d 753, 754 (10th Cir. 1999). This is true

even if the district court denies a § 2255 motion on procedural grounds. Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Thus, we may not entertain appeals from

the denial of § 2255 motions that lack an underlying constitutional claim.

      The parties identified a constitutional issue in the motion: a due process

challenge on the basis of being sentenced on materially inaccurate information. 1

R. 20-21. The parties explained that the 240-month sentence Mr. Mulay received

was actually within the correct guidelines range after Brooks, rather than a

                                         -5-
downward departure as the trial court envisioned. 1 R. 21-22. On appeal, Mr.

Mulay makes a different argument–that his sentence violated due process because

it was based upon the inaccurate fact that he was a career offender. Aplt. Br. at 5,

10; Aplt. Reply Br. at 2, 3. Under either due process theory, Mr. Mulay is

arguing that his sentence is incorrect based upon Brooks, a decision interpreting

the guidelines. Our precedent is clear that a claim of error concerning statutory

interpretation is insufficient to warrant a COA; and it would seem this applies to a

claim of error concerning guideline interpretation. See Christensen, 456 F.3d at

1206-1207; United States v. Taylor, 454 F.3d 1075, 1078-79 (10th Cir. 2006).

      On the other hand, we recognize that some circuits have held that an appeal

will lie for a § 2255 challenge based upon mandatory guidelines and a change in

the law concerning career offender status and a showing of prejudice. United

States v. Doe, No. 13-4274, 2015 WL 5131208, at *20 (3rd Cir. Sept. 2, 2015);

Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir. 2011).

      Given the government’s challenge to the COA because it does not raise a

constitutional issue, the Supreme Court instructs that “the court of appeals panel

must address the defect by considering an amendment to the COA or remanding

to the district judge for specification of the issues.” Gonzalez, 132 S. Ct. at 651.

We therefore PARTIALLY REMAND this case to the district court for

reconsideration and specification of any issue or issues of constitutional import.

We retain jurisdiction.

                                         -6-
      The parties shall notify this court in writing within 10 days of entry of an

order by the district court on partial remand. When an order has been entered the

district court clerk shall supplement the record on appeal with all pleadings and

orders filed on partial remand. If the district court has not entered an order by

December 18, 2015, the parties shall file written status reports advising the court

of the status of the district court proceedings.

                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge




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