                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 25, 2017
                                     PUBLISH                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
       v.                                               No. 16-2229
 RODNEY MILLER,

             Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW MEXICO
        (D.C. Nos. 1:16-CV-00566-WJ-WPL and 1:97-CR-00731-WJ-1)


Stephen P. McCue, Federal Public Defender, Office of the Federal Public
Defender, Albuquerque, New Mexico, for Appellant.

James R.W. Braun, Assistant United States Attorney (Damon P. Martinez, United
States Attorney, and James D. Tierney, Acting United States Attorney, with him
on the briefs), Office of the United States Attorney, Albuquerque, New Mexico,
for Appellee.


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


TYMKOVICH, Chief Judge.


      Rodney Miller was sentenced as a career offender under the 1998 version

of the Sentencing Guidelines, based in part on his prior conviction for a crime of
violence. After the Supreme Court’s decision in Johnson v. United States, 135 S.

Ct. 2551 (2015), Miller filed a petition under 28 U.S.C. § 2255 to vacate his

career-offender sentence, arguing his sentence violates due process. Specifically,

Miller contended the residual clause in the Guidelines is void for vagueness—a

rule he argued applies retroactively in collateral proceedings. Miller further

argued none of his prior convictions qualify as a “crime of violence” under the

surviving clauses of the career-offender guideline.

      The district court dismissed Miller’s motion with prejudice. The court

agreed the residual clause in the mandatory Guidelines did not survive Johnson,

but it concluded that the rule is not substantive and therefore does not have

retroactive effect on collateral review. Instead, the court reasoned, a rule

invalidating the residual clause in the Guidelines alters only the methods used to

determine whether a defendant should be sentenced as a career offender and

therefore has a procedural function.

      Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), we affirm the

dismissal of Miller’s motion, though for different reasons. As an initial matter,

we decline to exercise our discretion to dismiss Miller’s petition as untimely.

The government forfeited this argument and offers no persuasive reasons why we

should consider it anyway. Nevertheless, Miller cannot prevail on the merits.

Even assuming Johnson extends to the mandatory Guidelines, and that the rule

has substantive, retroactive effect, the residual clause was not unconstitutionally

                                         -2-
vague as applied to Miller’s conduct. When Miller was sentenced, the

commentary to the career-offender guideline designated robbery—Miller’s prior

offense of conviction—as a crime of violence. Because Miller’s conduct was

clearly proscribed, his vagueness challenge must fail on the merits.

                                I. Background

      In 1998, Rodney Miller pleaded guilty to one count of possession with

intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(iii). Miller was designated a career offender under § 4B1.1 of the 1998

version of the Sentencing Guidelines, because he had been convicted of a

controlled substance offense and had at least two prior convictions for crimes of

violence or drug-trafficking offenses as defined in § 4B1.2(a). In addition to a

prior drug-trafficking conviction, Miller had prior convictions for New Mexico

robbery, armed robbery, and false imprisonment. The career-offender designation

raised Miller’s guidelines sentencing range from 151–181 months’ imprisonment

to 262–327 months’ imprisonment. The court sentenced Miller to 262 months’

imprisonment, at the low end of the guidelines range.

      After the Supreme Court held in Johnson that the residual clause in the

Armed Career Criminal Act (ACCA) is void for vagueness, Miller filed a petition

under 28 U.S.C. § 2255 to vacate his sentence, arguing his sentence under the

residual clause of § 4B1.2(a) of the Guidelines violates due process. Because

Miller previously filed an unsuccessful § 2255 petition in 2001, he sought and

                                        -3-
obtained this court’s authorization to file a second petition. Miller contended the

rule from Johnson, as applied to the residual clause in the mandatory Guidelines,

is substantive and therefore applies retroactively in collateral proceedings,

because it narrows the class of individuals subject to increased punishment.

Miller further argued he was no longer a career offender, because his convictions

for robbery and false imprisonment do not qualify as predicate offenses under the

surviving clauses of § 4B1.2(a): the elements and enumerated offenses clauses.

      At the time Miller filed his second § 2255 motion, the government did not

dispute the unconstitutionality of the residual clause, because our circuit had

declared the career-offender residual clause in § 4B1.2(a) of the Guidelines

unconstitutionally vague in light of Johnson. See United States v. Madrid, 805

F.3d 1204, 1210 (10th Cir. 2015), abrogated in part by Beckles v. United States,

137 S. Ct. 886 (2017). Instead, the government argued that a rule invalidating the

residual clause of § 4B1.2(a) is a procedural rule under Teague v. Lane, 489 U.S.

288 (1989), that does not apply retroactively to collateral proceedings.

      The magistrate judge agreed with the government’s retroactivity argument,

concluding that the application of Johnson to the Guidelines is a procedural rule

that alters only the methods used to determine whether a defendant should be

sentenced as a career criminal. Accordingly, the magistrate judge recommended

dismissal of Miller’s § 2255 motion. Miller objected to this proposed finding.

The district court overruled his objections, adopted the magistrate judge’s

                                         -4-
proposed findings, and dismissed with prejudice Miller’s motion to vacate his

sentence. The district court granted a certificate of appealability to this court.

      While Miller’s appeal was pending, the Supreme Court decided Beckles.

There the Court held that unlike the ACCA, the advisory Sentencing Guidelines

are not subject to void-for-vagueness challenges, since they “do not fix the

permissible range of sentences,” but rather “guide the exercise of a court’s

discretion in choosing an appropriate sentence within the statutory range.” 137 S.

Ct. at 892. Whereas the ACCA provides notice of potential punishment by fixing

the statutory range of prison terms, the Court reasoned, the advisory Guidelines

guide judges’ discretion within a given statutory range and therefore are not

amenable to a vagueness challenge. Id. at 894. But the Court left open the

question whether the same is true for the mandatory Guidelines—the version

under which Miller was sentenced.

      That question is presented in this case.

                                    II. Analysis

      Miller asks us to reverse the district court’s dismissal of his § 2255 motion

to vacate his sentence, arguing Beckles does not foreclose relief, and the court

erred in its retroactivity analysis. Before we reach that question, however, we

must address the government’s argument, raised for the first time after oral

argument, that Miller’s motion was untimely. The government has forfeited this

argument by failing to raise it in its answer to Miller’s motion or at any point

                                          -5-
during the proceedings below. And although we have discretion to consider a

forfeited timeliness defense, we decline to do so here. Ultimately, however,

Miller’s challenge to the constitutionality of his sentence fails on the merits.

Accordingly, we affirm the district court’s dismissal of Miller’s § 2255 motion

with prejudice.

      A. Timeliness

      The government argues for the first time in a letter filed pursuant to Federal

Rule of Appellate Procedure 28(j) that Miller’s motion to vacate his sentence is

time barred, because the Supreme Court has not recognized the right he is

asserting—namely, that the residual clause in the mandatory Guidelines is

unconstitutionally vague. The government did not raise this argument in its

response to Miller’s § 2255 motion, in the district court, or at any time on appeal

until after oral argument. 1

      In general, a defendant must file a § 2255 motion to vacate his sentence

within one year of “the date on which the judgment of conviction becomes final.”

See 28 U.S.C. § 2255(f)(1). As relevant here, however, this one-year statute of


      1
         In its supplemental brief filed after Beckles, the government did argue
that Beckles “undercuts this Court’s authorization of Miller’s second or
successive § 2255 motion, because it makes clear that the Supreme Court has
neither extended Johnson to the Guidelines nor made such an extension
retroactive.” Aple. Supp. Br. at 2. But the government never made a specific
argument about timeliness under the relevant provision of § 2255, and in any
event, the government did not raise the statue of limitations at any point during
the district court proceedings.

                                          -6-
limitations runs from the later of that date or “the date on which the right asserted

was initially recognized by the Supreme Court, if that right has been newly

recognized by the Supreme Court and made retroactively applicable to cases on

collateral review.” See 28 U.S.C. § 2255(f)(3). In other words, because Miller

filed his second § 2255 motion in 2016, long after his conviction became final,

the motion was untimely unless § 2255(f)(3) applies.

      The problem for the government is it failed to raise a statute of limitations

defense until recently. And because a limitations defense is not jurisdictional, the

Supreme Court has explained that “courts are under no obligation to raise the time

bar sua sponte.” See Day v. McDonough, 547 U.S. 198, 205 (2006) (emphasis

removed). Instead, the time bar is on par with other threshold barriers that federal

habeas prisoners face, including exhaustion of state remedies, procedural default,

and nonretroactivity. Id. Nevertheless, courts of appeals have the

authority—although not the obligation—to consider a forfeited habeas defense in

exceptional cases. Wood v. Milyard, 566 U.S. 463, 473 (2012).

      Here, we decline to exercise our discretion to consider the government’s

forfeited statute of limitations argument. 2 The Supreme Court has explained that

      2
         The government’s conduct fits the description of forfeiture, not waiver.
“Waiver is accomplished by intent,” whereas “forfeiture comes about through
neglect.” Richison v. Ernest Grp., 634 F.3d 1123, 1128 (10th Cir. 2011) (quoting
United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008)). That is,
“[a] waived claim or defense is one that a party has knowingly and intelligently
relinquished; a forfeited plea is one that a party has merely failed to preserve.”
                                                                        (continued...)

                                          -7-
although courts of appeals may consider, sua sponte, a forfeited argument about

the timeliness of a habeas petition, “appellate courts should reserve that authority

for use in exceptional cases.” Id. The government makes no argument that this is

such a case, and we see no reason to exercise our authority here. The government

simply claims it is appropriate for the court to act sua sponte and dismiss Miller’s

motion as untimely, because Miller has already served most of his sentence and

has been released to a halfway house. But this is hardly an exceptional

circumstance warranting departure from the usual rule. Additionally, Miller has

been afforded no opportunity to respond to the government’s new timeliness

argument.

      Given that the parties have already engaged in several rounds of briefing

and attended oral argument before this court, and Miller raises an important issue

that is sure to recur in our circuit, we conclude the interests of justice are better

served by addressing the merits of Miller’s petition. 3

             B. Miller’s Vagueness Challenge

      2
        (...continued)
Wood, 566 U.S. at 474 n.4. When Miller filed his motion, the controlling law in
our circuit held Johnson extended to the Sentencing Guidelines. Accordingly, it
may not have occurred to the government to challenge the timeliness of the
motion on the grounds that the Supreme Court had not recognized the right Miller
was asserting. Because we conclude the government did not intentionally
abandon a statute of limitations defense, we retain discretion to consider this
forfeited argument.
      3
        In doing so, we express no opinion on whether the Supreme Court has
recognized the right Miller is asserting for purposes of § 2255(f)(3).

                                           -8-
      Miller contends Beckles is distinguishable based on the Supreme Court’s

reasoning in United States v. Booker, 543 U.S. 220 (2005), where the Court

invalidated the provisions that rendered the Guidelines mandatory. Relying on

the Court’s decision in Welch v. United States, 136 S. Ct. 1257 (2016), Miller

asks us to reverse the district court’s dismissal of his § 2255 motion to vacate his

sentence, arguing the court erred in concluding that a rule invalidating the

residual clause of § 4B1.2(a) does not apply retroactively in collateral

proceedings. We decline this invitation. In doing so, “we review the district

court’s legal rulings on a § 2255 motion de novo and its findings of fact for clear

error.” United States v. Pearce, 146 F.3d 771, 774 (10th Cir. 1998).

      The residual clause in the 1998 version of the Sentencing Guidelines

provides that a crime of violence for purposes of the career-offender enhancement

“otherwise involves conduct that presents a serious potential risk of physical

injury to another.” USSG § 4B1.2(a). The Court held that virtually identical

language in the ACCA is void for vagueness. See Johnson, 135 S. Ct. at 2557. It

has since held the same language in the advisory Guidelines is not. See Beckles,

137 S. Ct. at 892. Miller, of course, was sentenced in 1998, under the mandatory

version of the Guidelines.

      Whether the mandatory Guidelines are amenable to vagueness challenges is

an issue of first impression in our circuit, and one that is sure to recur in light of

Johnson and Beckles. So far, only the Eleventh Circuit has held that the

                                           -9-
mandatory Guidelines cannot be unconstitutionally vague, and it did so before

Beckles was decided. See In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016).

The court initially held in United States v. Matchett, 802 F.3d 1185 (11th Cir.

2015), cert. denied, 137 S. Ct. 1344 (2017), that the void-for-vagueness doctrine

does not apply to the advisory Guidelines, since the Guidelines are simply a

starting point intended to aid judges in sentencing—defendants cannot expect

notice of what sentence the court will impose. Id. at 1194. In Griffin, the court

extended this rule to the mandatory Guidelines, reasoning that “[t]he

Guidelines—whether mandatory or advisory—cannot be unconstitutionally vague

because they do not establish the illegality of any conduct and are designed to

assist and limit the discretion of the sentencing judge. . . . Due process does not

mandate notice of where, within the statutory range, the guidelines sentence will

fall.” 823 F.3d at 1354.

      Other circuits have suggested the opposite, without directly confronting the

issue. For example, in In re Hubbard, 825 F.3d 225 (4th Cir. 2016), the Fourth

Circuit authorized a successive § 2255 petition based on Johnson, rejecting the

argument that the application of Johnson to the mandatory Guidelines was a

procedural rule lacking retroactive effect. Id. at 234. In doing so, the court

reasoned that although the Guidelines do not control available sentences, they

“hardly represent a mere suggestion to courts about the proper sentences

defendants should receive.” Id.

                                         -10-
      But we need not weigh in today, for this case has a simple resolution:

Miller cannot mount a vagueness challenge to his enhanced sentence, because the

enumeration of robbery in the commentary to the career-offender guideline

sufficiently narrows the application of the residual clause to Miller’s conduct.

      “The void-for-vagueness doctrine derives from the Due Process Clause of

the Fifth Amendment, which guarantees that ‘[n]o person shall . . . be deprived of

life, liberty, or property, without due process of law.’” Golicov v. Lynch, 837

F.3d 1065, 1068 (10th Cir. 2016). The Supreme Court has invalidated two types

of criminal laws as void for vagueness: “laws that define criminal offenses, and

laws that fix the permissible sentences for criminal offenses.” Beckles, 137 S. Ct.

at 892 (emphasis in original). In Beckles, the Court concluded the advisory

Guidelines do neither and thus do not implicate the twin concerns of notice and

arbitrary enforcement that underpinned the Court’s decision in Johnson. Id. at

894. Instead, the advisory Guidelines simply guide—but do not constrain—a

judge’s discretion in sentencing. Id. at 892.

      In Beckles, however, two justices would have rejected the petitioner’s

challenge to his sentence based solely on the enumeration of his offense of prior

conviction in the commentary to § 4B1.2(a). When Travis Beckles sustained his

conviction for possession of a sawed-off shotgun by a felon, the official

commentary to § 4B1.2(a) expressly designated that offense as a crime of

violence. See USSG § 4B1.2(a) cmt. n.1 (2006) (“Unlawfully possessing a

                                        -11-
firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off

rifle, silencer, bomb, or machine gun) is a ‘crime of violence.’”). Justices

Ginsburg and Sotomayor would have rejected Beckles’s vagueness challenge on

this ground alone.

      Justice Ginsburg preferred not to issue a broad holding about the

Guidelines as a whole, since Beckles itself had a “simple solution.” 137 S. Ct. at

897 (Ginsburg, J., concurring). Because the official commentary to the

Guidelines clearly proscribed Beckles’s conduct, Justice Ginsburg would have

held that Beckles could not “claim that § 4B1.2(a) was vague as applied to him.”

Id. at 898. Nor could he “complain of the vagueness of the [guideline] as applied

to the conduct of others.” Id. (quoting Holder v. Humanitarian Law Project, 561

U.S. 1, 18–19 (2010)). Justice Sotomayor agreed. See Beckles, 137 S. Ct. at 898

(Sotomayor, J., concurring) (“Johnson affords Beckles no relief, because the

commentary under which he was sentenced was not unconstitutionally vague.”).

The concurring justices therefore agreed with the outcome but not with the

majority’s reasoning—neither was prepared to declare the advisory Guidelines

immune from vagueness challenges.

      The circumstances are similar here. At the time Miller was sentenced,

Application Note 1 in the commentary to § 4B1.2(a) provided that a crime of

violence “includes murder, manslaughter, kidnapping, aggravated assault, forcible

sex offenses, robbery, arson, extortion, extorionate extension of credit, and

                                        -12-
burglary of a dwelling.” USSG § 4B1.2(a) cmt. n.1 (1998) (emphasis added).

And unless the commentary “violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline,” we treat it as

binding and authoritative. United States v. Morris, 562 F.3d 1131, 1135 (10th

Cir. 2009) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).

      The government argues the enumeration of robbery in the commentary

“provides an independent reason for affirming the district court in this case

irrespective of the mandatory nature of the Guidelines when Miller was

sentenced.” Aple. Supp. Br. at 3 n.1. We agree.

      Miller urges us to conclude otherwise, arguing the commentary is not

authoritative because it is inconsistent with the text of § 4B1.2(a). He claims we

must first excise the residual clause, and then consider the application note’s

relationship to the guideline text. Since the enumeration of robbery is not

interpreting the elements or enumerated offenses clauses, Miller believes, it is

expanding the definition of a crime of violence and is therefore inconsistent with

§ 4B1.2(a).

      But Miller confuses the “normal order of operations” in analyzing

vagueness challenges. See Beckles, 137 S.Ct. at 897 n.* (Ginsburg, J.,

concurring). 4 As Justice Ginsburg explained in Beckles, the Supreme Court “has

      4
        In support of his argument, Miller cites cases from the First, Seventh, and
Eighth circuits, in which those courts held the enumeration of robbery in the
                                                                      (continued...)

                                         -13-
routinely rejected, in a variety of contexts, vagueness claims where a clarifying

construction rendered an otherwise enigmatic provision clear as applied to the

challenger.” Id. at 897 (first citing Bell v. Cone, 543 U.S. 447, 453, 457–58

(2005) (per curiam); then citing Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 500–02, n.18 (1982); and then citing Red Lion Broadcasting

Co. v. FCC, 395 U.S. 367, 395 (1969)). This is so because a narrowing

construction of an otherwise vague statute “provide[s] a person of ordinary

intelligence fair notice of what is prohibited.” See Holder, 561 U.S. at 20

(quoting United States v. Williams, 553 U.S. 285, 304 (2008)). And in the context

of sentencing, a clarifying construction provides guidance to judges, thus

preventing arbitrary or uneven enforcement. Cf. Bell, 543 U.S. at 453.

      The same principle holds true here. Assuming the residual clause in

§ 4B1.2(a) would otherwise be unconstitutionally vague, the enumeration of

robbery in Application Note 1 renders the clause’s application to Miller

sufficiently clear. See Hoffman Estates, 455 U.S. at 500. Because Miller’s

conduct was clearly proscribed, he cannot complain he was denied fair notice of


      4
       (...continued)
commentary impermissibly expands the definition of a crime of violence. See
Aplt. Br. at 28–29 (first citing United States v. Soto-Rivera, 811 F.3d 53 (1st Cir.
2016); then citing United States v. Rollins, 836 F.3d 737 (7th Cir. 2016); and then
citing United States v. Bell, 840 F.3d 963 (8th Cir. 2016)). But in each case, the
court made the same error as Miller: it first excised the residual clause and then
concluded the commentary listing robbery was not an interpretation of the
elements or enumerated offenses clauses.

                                        -14-
the possibility of enhanced punishment. Cf. Johnson, 135 S. Ct. at 2557. And for

similar reasons, there was no risk of arbitrary enforcement by judges. On its own,

the residual clause might “leave[] grave uncertainty about how to estimate the

risk posed by a crime.” See id. But because the commentary clarifies that

robbery poses a serious enough risk of physical injury to others, none of the

judicial speculation and guesswork that would accompany the ordinary case is

present here.

      Since the enumeration of robbery in the commentary does not conflict with

the text of § 4B1.2(a), we reject Miller’s argument that the commentary is not

authoritative here. Our decision today is therefore entirely consistent with cases

where we have declined to apply the guidelines commentary so as to expand

§ 4B1.2(a). Cf. United States v. Armijo, 651 F.3d 1226, 1236–37 (10th Cir. 2011)

(holding Colorado manslaughter is not a crime of violence notwithstanding its

enumeration in the commentary to § 4B1.2(a), because that provision covers only

intentional conduct, and Colorado manslaughter involves only reckless conduct).

      In sum, we hold that Miller’s sentence does not violate due process,

because his conduct triggering the career-offender enhancement was clearly

proscribed in the authoritative commentary to the Guidelines. 5

      5
        In rejecting Miller’s Johnson challenge, we do not hold that New Mexico
robbery categorically qualifies as a crime of violence under the Guidelines
commentary. Such a determination would require further inquiry into whether
New Mexico robbery matches the generic version of the offense. See United
                                                                     (continued...)

                                        -15-
                                 III. Conclusion

      For the foregoing reasons, we AFFIRM the dismissal of Miller’s § 2255

motion to vacate his sentence.




      5
       (...continued)
States v. Castillo, 811 F.3d 342, 345–46 (10th Cir. 2015) (explaining that we ask
whether a state offense “substantially corresponds to the ‘modern generic view’ of
any of the offenses enumerated in . . . the Guidelines”). Because Miller only
challenges his sentence on the ground that it was imposed based on an
unconstitutionally vague Guidelines provision, our holding—that the residual
clause was not unconstitutionally vague as applied to Miller—is sufficient to
resolve this appeal.

                                       -16-
