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

                             FOR THE TENTH CIRCUIT                           March 29, 2018
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-8086
                                                 (D.C. Nos. 1:16-CV-00078-ABJ and
MICHAEL WILLIAM IVERSON,                               2:09-CR-00086-ABJ-1)
                                                              (D. Wyo.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Federal prisoner Michael Iverson seeks a certificate of appealability (COA) to

appeal the district court’s order denying his 28 U.S.C. § 2255 motion. For the reasons

discussed below, we deny his request for a COA and dismiss this matter.

      In 2009, Iverson pleaded guilty to being a felon in possession of a firearm.

Citing Iverson’s prior Arkansas conviction for robbery and his two prior Texas

convictions for aggravated assault with a deadly weapon, the sentencing court

determined that Iverson had at least three prior convictions for offenses that qualified

as violent felonies under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.



      *
         This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
§ 924(e). It thus sentenced Iverson to 15 years in prison. See § 924(e) (imposing 15-

year mandatory minimum sentence if defendant has three predicate convictions).

      In May 2016, Iverson filed a counseled and timely § 2255 motion. He argued

that under Johnson v. United States, 135 S. Ct. 2551 (2015)—which struck down the

ACCA’s residual clause as unconstitutional—his prior convictions no longer qualify

as predicate convictions under the ACCA. The district court denied relief, finding

that (1) the record contained no indication that the sentencing court relied on the

residual clause and (2) the sentencing court would have instead classified Iverson’s

prior convictions as ACCA predicates under the elements clause. Cf. United States v.

Snyder, 871 F.3d 1122, 1130 (10th Cir. 2017) (“Considering the record in

[defendant’s] case in light of th[e] relevant background legal environment, we are

unable to disagree with the district court’s finding that its ACCA determination

rested on application of the enumerated[-]crimes clause, rather than the residual

clause.”), petition for cert. filed Dec. 19, 2017 (No. 17-7157). Thus, because Johnson

dealt only with the residual clause and Iverson wasn’t sentenced under the residual

clause, the district court concluded that his Johnson claim failed. See id.

      Iverson now seeks to appeal the district court’s denial of his § 2255 motion,

but he must first obtain a COA. See 28 U.S.C. § 2253(c)(1)(B). To do so, Iverson

“must demonstrate that reasonable jurists would find the district court’s assessment”

of his Johnson claim “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).



                                           2
      Iverson concedes that “the record in light of the background legal environment

at the time shows that the [sentencing] court could have relied on the enumerated[-]

offenses clause or [elements] clause at the time of sentencing” to classify his prior

convictions as ACCA predicates. Aplt. Br. 3. And he acknowledges that under our

recent decision in Snyder, we therefore cannot reach his residual-clause argument.

See 871 F.3d at 1130. But he explains that he nevertheless appeals “to preserve

further review [of] the issue of whether the residual clause may have affected his

sentence.” Aplt. Br. 4.

      Because Iverson thus advances no grounds for us to conclude that reasonable

jurists would debate the district court’s ruling, we deny his COA request.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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