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

                             FOR THE TENTH CIRCUIT                       December 27, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                             No. 17-8029
v.                                                 (D.C. No. 1:16-CV-00154-SWS)
                                                              (D. Wyo.)
AARON NEAL SAFFORD,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                  _________________________________

      Defendant Aaron Neal Safford seeks a certificate of appealability (COA) to appeal

the dismissal by the United States District Court for the District of Wyoming of his

motion under 28 U.S.C. § 2255 challenging his sentence. See 28 U.S.C. § 2253(c)(1)(B)

(requiring COA to appeal denial of relief under § 2255). We grant a COA but affirm the

dismissal on the merits. Although Johnson v. United States, 135 S. Ct. 2551, 2557

(2015), held that the residual clause of the Armed Career Criminal Act (ACCA), 18



*
  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 This order and judgment is not binding precedent, except under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.
U.S.C. § 924(e),1 violates due process because it is unconstitutionally vague, Defendant

was not sentenced under that clause.

       In February 2010, Defendant pleaded guilty to one count of being a felon in

possession of a firearm. See 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The presentence

report, without objection from Defendant, determined that Defendant was subject to the

mandatory minimum 15-year sentence imposed by the ACCA because he had three

predicate convictions: namely, two convictions for serious drug offenses (unlawful

distribution of a controlled substance) and one conviction for a violent felony (burglary

under Wyoming law). On May 14, 2010, Defendant was sentenced to 15 years’

imprisonment. He did not appeal.

       A year later, Defendant moved for relief under § 2255, claiming that his counsel

was ineffective for failure to advise him of the consequences of his guilty plea. The

district court set an evidentiary hearing and appointed counsel to represent Defendant,

instructing counsel to pay particular attention to (1) whether Defendant’s attorney

advised him of the 15-year mandatory minimum, (2) whether Defendant had a full

understanding of his potential sentence, and (3) whether Defendant would still have

pleaded guilty had he known he faced a potential 15-year mandatory minimum sentence.


1
  The ACCA defines a violent felony as any offense that (1) “has as an element the use,
attempted use, or threatened use of physical force against the person of another” (the
elements clause); (2) “is burglary, arson, or extortion, [or] involves use of explosives”
(the enumerated-offenses clause); or (3) “otherwise involves conduct that presents a
serious potential risk of physical injury to another” (the invalidated residual clause). 18
U.S.C. § 924(e)(2)(B). The statute imposes enhanced sentences on certain defendants
with three previous convictions for violent felonies or serious drug offenses. See id. at
§ 924(e)(1).

                                              2
       Before the scheduled hearing, Defendant’s newly appointed attorney and the

government filed with the district court a “Stipulated Motion for Dismissal with

Prejudice.” Although the motion said that defense counsel had determined that

Defendant had not been adequately advised by his counsel regarding the ACCA sentence,

it further stated that Defendant was eligible to be sentenced under the ACCA, in part

because his prior conviction for burglary was a conviction for generic burglary, which is

an enumerated offense under the ACCA; and, most notably, it said that Defendant now

believed that, even had he been properly advised, he would still have pleaded guilty. The

court granted the motion to dismiss with prejudice on February 19, 2013.

       In June 2015 the Supreme Court’s decision in Johnson held that the residual

clause of the ACCA is unconstitutional. After Welch v. United States, 136 S.Ct. 1257,

1265 (2016), held that Johnson is to be applied retroactively to cases on collateral review,

Defendant obtained authorization from this court to file a second-or-successive motion

under § 2255 to argue that Johnson invalidated his ACCA sentence enhancement. Upon

consideration of the motion, however, the district court dismissed it because the

sentencing court had not relied upon the now-invalid residual clause.

       After Defendant filed his initial pro se brief, we granted his motion to appoint

counsel. Counsel’s brief sharpens and expands the arguments in the pro se brief. It relies

on Johnson, but only indirectly. The central point of the brief is that Defendant’s

Wyoming burglary conviction cannot serve as an ACCA predicate under the enumerated-

offenses clause if the court applies the approach of Mathis v. United States, 136 S.Ct.

2243 (2016), which abrogated Tenth Circuit precedent holding that Wyoming burglary


                                             3
could be a violent felony under that clause. He argues that Johnson is relevant because

pre-Johnson it would have been futile to challenge Wyoming burglary as not coming

under the enumerated-offenses clause. Until Johnson, he argues, the application of the

residual clause would have defeated any claim that the burglary conviction was not a

predicate offense under the ACCA. In other words, he contends that he is truly raising a

Johnson claim because his Mathis claim did not become ripe until Johnson, even though

he is not raising a due-process vagueness claim. Further, Defendant contends that his

sentence violates due process because he is statutorily ineligible for that sentence.

       We are not persuaded. We rejected the same arguments in United States v.

Westover, No. 17-8013, 2017 WL 4900449 (10th Cir. Oct. 31, 2017). As we stated there,

our opinion in United States v. Snyder, 871 F.3d 1122, 1128–29 (10th Cir. 2017), requires

us to evaluate Johnson claims by examining the record to determine whether the ACCA

sentence enhancement was in fact based on the residual clause. The “mere ‘option’ of

applying the ACCA’s residual clause [does not] constitute[] a Johnson error.” Id. at *3.

What Defendant is attempting is to leverage the irrelevant Johnson decision to enable

him to apply Mathis retroactively. We can admire the effort, but we cannot permit such a

circumvention of habeas law.




                                              4
      We AFFIRM the denial of Defendant’s motion. We DENY defendant’s Motion

for leave to proceed in forma pauperis as moot.

                                            Entered for the Court


                                            Harris L Hartz
                                            Circuit Judge




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