                                                                            FILED
                                                                United States Court of Appeals
                                      PUBLISH                           Tenth Circuit

                    UNITED STATES COURT OF APPEALS                      April 29, 2016

                                                                    Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                        Clerk of Court


In re: JASON THOMAS ENCINIAS,                             No. 16-8038
                                               (D.C. Nos. 1:06-CV-00093-WFD &
             Movant.                                2:01-CR-00099-WFD-2)
                                                           (D. Wyo.)


                                      ORDER


Before TYMKOVICH, Chief Judge, LUCERO and McHUGH, Circuit Judges.


PER CURIAM.

      Jason Thomas Encinias, through counsel,1 seeks authorization to file a second

or successive motion for relief under 28 U.S.C. § 2255 to challenge his enhanced

sentence imposed under the career-offender provision of the United States Sentencing

Guidelines, U.S.S.G. § 4B1.1. He relies on 28 U.S.C. § 2255(h)(2), which permits

authorization of claims that contain “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.” To obtain authorization, he must make a “prima facie” showing that

his claim meets this gatekeeping requirement. 28 U.S.C. § 2244(b)(3)(C). We have

      1
       The Federal Public Defender for the Districts of Wyoming and Colorado is
appointed to represent Mr. Encinias in this matter pursuant to 18 U.S.C.
§ 3006A(a)(2)(B).
characterized this showing as involving “only a preliminary determination” based on

“an expedited assessment” as to whether the movant’s case in support of

authorization “demonstrate[s] possible merit to warrant a further exploration [of the

grounds for authorization] by the district court,” Case v. Hatch, 731 F.3d 1015, 1028

(10th Cir. 2013) (internal quotation marks omitted); see also id. at 1028-29 (noting

that to grant authorization circuit court need only decide “it appears reasonably likely

that the application satisfies the stringent requirements of the filing of a second or

successive petition,” leaving definitive disposition of that question to the district

court (internal quotation marks omitted)).

      Encinias alleges that one or more of the predicate felony offenses relied on for

designating him a career offender qualified for that purpose by virtue of the residual

clause in the Guideline’s definition of “crime of violence,” which encompasses

crimes that “involve[] conduct that presents a serious potential risk of physical injury

to another.” U.S.S.G. § 4B1.2(a)(2). He seeks to challenge his sentence on the basis

of a new rule of constitutional law established in Johnson v. United States,

___ U.S. ___, 135 S. Ct. 2551 (2015). The Supreme Court recently made Johnson’s

holding retroactive to cases on collateral review in Welch v. United States,

___ U.S. ___, 2016 WL 1551144, at *8 (Apr. 18, 2016). Thus, Encinias is entitled to




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authorization for his challenge to the career-offender Guideline so long as it is

properly deemed to be based on Johnson for purposes of § 2255(h)(2).2

      In Johnson, the Court held that the identical residual clause in the definition of

“violent felony” under the Armed Career Criminal Act (“ACCA”) is

unconstitutionally vague. Specifically, the Court concluded that the “residual

clause . . . invites arbitrary enforcement by judges” and thus “[i]ncreasing a

defendant’s sentence under the clause denies due process of law.” Johnson, 135

S. Ct. at 2557. In United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015), a direct

criminal appeal, we held that Johnson’s invalidation of the unconstitutionally vague

residual clause in the ACCA led to the same result for the career-offender Guideline:

“The concerns . . . that motivated the Court in Johnson lead us to conclude that the

residual clause of the Guidelines is also unconstitutionally vague. If one iteration of

the clause is unconstitutionally vague, so too is the other.” Id. at 1210; see also In re

Robinson, No. 16-11304-D, 2016 WL 1583616, at *2 n.2 (11th Cir. Apr. 19, 2016)

(unpublished) (Martin, J., concurring) (noting every circuit except the Eleventh has




      2
        Section 2255(h)(2) states that the claim for which authorization is sought
must “contain” the new rule of constitutional law. We have taken this to mean the
claim must be “based upon” or “rel[y] on” the new rule cited by the movant. United
States v. Wetzel-Sanders, 805 F.3d 1266, 1268 (10th Cir. 2015), petition for cert.
filed (U.S. Mar. 28, 2016) (No. 15-8750); In re Shines, 696 F.3d 1330, 1332
(10th Cir. 2012).


                                          -3-
held or assumed Johnson applies to the Guidelines).3 Thus, although the immediate

antecedent for Encinias’ challenge to the career-offender Guideline is our decision in

Madrid, that decision was based, in turn, on the seminal new rule of constitutional

law recognized in Johnson and now made retroactive to collateral review by Welch.

      We recognize that before this court could consider applying Johnson to the

career-offender Guideline in Madrid, we had to first decide that the vagueness

doctrine enforced by Johnson applies to the Sentencing Guidelines. See Madrid,

805 F.3d at 1211. The circuits are split on that issue, but trend toward accepting our

view in light of Peugh v. United States, ___ U.S. ___, 133 S. Ct. 2072, 2082 (2013).

Madrid, 805 F.3d at 1211 n.9. In Peugh, the Court held that the Guidelines are

subject to ex post facto challenges “notwithstanding the fact that sentencing courts

possess discretion to deviate from the recommended sentencing range.” 133 S. Ct.

at 2082. Discussing a prior decision concerning a state sentencing scheme that

“achieved its ‘binding legal effect’ through a set of procedural rules and standards for

appellate review that, in combination, encouraged district courts to sentence within

the guidelines,” the Court explained that the “federal sentencing regime after Booker

does the same.” Id. at 2086.




      3
        We further note that the Supreme Court has vacated and remanded several
career-offender sentences for reconsideration in light of Johnson. See, e.g., United
States v. Maldonado, 581 F. App’x 19, 22-23 (2d Cir. 2014), vacated, 135 S. Ct.
2929 (2015); Beckles v. United States, 579 F. App’x 833, 833-34 (11th Cir. 2014),
vacated, 135 S. Ct. 2928 (2015).

                                         -4-
      Thus, one might object that Encinias is relying on Madrid rather than Johnson

to satisfy § 2255(h)(2). But given the similarity of the clauses addressed in the two

cases and the commonality of the constitutional concerns involved, we consider it

appropriate to conclude, as a prima facie matter, that Encinias’ challenge to his

career-offender sentence is sufficiently based on Johnson to permit authorization

under § 2255(h)(2).4

      The motion for authorization is GRANTED.




      4
        Other circuits have reached differing conclusions on this question. The
Seventh Circuit has authorized second or successive challenges to the career-offender
Guideline based on Johnson. See, e.g., Stork v. United States, No. 15-2687,
2015 WL 5915990 (7th Cir. Aug. 13, 2015) (unpublished). The Eleventh Circuit has
held that the lack of Supreme Court precedent applying Johnson in this context
precludes authorization. See In re Rivero, 797 F.3d 986, 991 (11th Cir. 2015).

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