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

                             FOR THE TENTH CIRCUIT                       April 3, 2017
                         _________________________________
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 16-6181
                                                (D.C. Nos. 5:16-CV-00110-C and
RODERICK DESHON RICHARDS,                             5:07-CR-00314-C-2)
                                                          (W.D. Okla.)
     Defendant - Appellant.
______________________________

FEDERAL PUBLIC DEFENDERS FOR
THE DISTRICTS OF COLORADO,
WYOMING, KANSAS, NEW MEXICO,
OKLAHOMA (NORTHERN &
EASTERN), AND UTAH,

      Amici Curiae.

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                          No. 16-6198
v.                                                (D.C. No. 5:07-CR-00314-C-1)
                                                          (W.D. Okla.)
RODERICK DESHON RICHARDS,

      Defendant - Appellant.
                      _________________________________

                              ORDER AND 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
                         _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

       We have consolidated for briefing and decision two appeals filed by Roderick

Richards. The claim for relief in each case is predicated on the contention that his right

to due process was violated when the sentencing court used the residual clause of USSG

§ 4B1.2(a)(2) (2015) in calculating his guideline sentencing range. His appeal in No. 16-

6181 is from a proceeding under 28 U.S.C. § 2255 in which he argued that the residual

clause is unconstitutionally vague and as a result he was improperly treated as a career

offender under the guidelines. The district court denied the § 2255 motion on the ground

that Mr. Richards’s plea agreement had waived his right to raise a collateral challenge to

his sentence, but the court granted him a certificate of appealability (COA) authorizing

his appeal, see 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of relief under

§ 2255). The appeal in No. 16-6198 is from the district court’s dismissal of his motion

under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence based on Amendment 782 to

the United States Sentencing Guidelines, which reduced the offense levels of various

drug offenses. The district court dismissed the motion on the ground that Mr. Richards

was ineligible for reduction because of his career-offender status.

       Mr. Richards argues on appeal that the waiver in his plea agreement does not

preclude the constitutional challenge to his sentence and that if his sentence is properly


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.
                                             2
corrected, he would be eligible for relief under Amendment 782. But we need not

address whether Mr. Richards’s waiver precludes his § 2255 motion, because the motion

lacks merit anyway. In Beckles v. United States, No. 15-8544, 2017 WL 855781 (S. Ct.

Mar. 6, 2017), the Supreme Court rejected a vagueness challenge under the Due Process

Clause to the residual clause of § 4B1.2(a)(2). See United States v. Snyder, No. 16-8108,

2017 WL 1149077 (10th Cir. Mar. 28, 2017). And because Mr. Richards was properly

sentenced as a career offender, the appeal of the dismissal of his motion under

§ 3582(c)(2) must also be denied.

      We AFFIRM the judgments of the district court in both appeals.


                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




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