United States v. Brown

Opinion

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

FOR THE TENTH CIRCUIT July 18, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-7029 (D.C. Nos. 6:16-CV-00251-RAW & DYMOND CHARLES BROWN, 6:06-CR-00069-RAW-1) (E.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________

Dymond Charles Brown, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) under 28 U.S.C. § 2253(c)(1) to challenge the

district court’s dismissal of his second or successive 28 U.S.C. § 2255 petition.1 We

decline to issue him a COA and accordingly now dismiss the appeal.

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 We liberally construe pro se litigants’ pleadings, holding them to “a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). Though we can’t “assume the role of advocate,” we’ll excuse citation gaps, untangle confused legal theories, and overlook poor syntax. Id. BACKGROUND

On February 12, 2007, a jury convicted Brown of one count of possession of

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

841(b)(1)(B)(iii).2 Later that year, a judge sentenced him to 262 months

imprisonment after imposing a career-offender enhancement under § 4B1.1 of the

United States Sentencing Guidelines (U.S.S.G.). U.S. Sentencing Guidelines Manual

§ 4B1.1 (U.S. Sentencing Comm’n 2007). The court enhanced his sentence under

U.S.S.G. § 4B1.1 because he had two prior convictions for crimes of violence: (1)

feloniously pointing a firearm in violation of Okla. Stat. tit. 21, § 1289-16; and (2)

shooting with intent to kill.3

On June 10, 2016, Brown timely moved to file a second or successive 28

U.S.C. § 2255 motion based on Johnson v. United States, 135 S. Ct. 2551 (2015). In

that motion, Brown moved to vacate his sentence because he was sentenced under

U.S.S.G. § 4B1.1, which relies on U.S.S.G. § 4B1.2’s crime of violence definition.

And U.S.S.G. § 4B1.2’s crime of violence definition, he contended, is

unconstitutionally vague under Johnson. This court granted leave for him to file his

second or successive § 2255 motion. The government then filed a motion to stay the

proceedings pending resolution of Beckles v. United States, 137 S. Ct. 886, 895, 897

2 The court sentenced Brown two years after the Supreme Court ruled that the sentencing guidelines are advisory in United States v. Booker, 543 U.S. 220, 245–46 (2005). 3 It is unclear from the record what statute Brown was convicted under for this offense. Because Brown doesn’t contend that his conviction for shooting with intent to kill isn’t a crime of violence, this gap in the record is immaterial. 2 (2017). Brown objected to this motion and requested bail. But the district court

granted the motion to stay and denied Brown bail.

Then, on March 6, 2017, the Supreme Court issued its opinion in Beckles,

concluding that Johnson’s holding doesn’t apply to the career-offender provisions of

the advisory sentencing guidelines. Beckles, 137 S. Ct. at 895, 897. Brown moved to

supplement his § 2255 petition in light of Beckles, now urging a due-process

vagueness challenge based on the sentencing court’s somehow having improperly

enhanced his sentence by using the statutory range contained in 21 U.S.C.

§ 841(b)(1)(B)(iii) and not U.S.S.G. § 4B1.1. The district court denied Brown’s

second or successive § 2255 petition as a thinly-veiled attempt to circumvent

Beckles. The court also denied him a COA. Brown now appeals.

DISCUSSION

Before he may appeal, Brown must obtain a COA. 28 U.S.C. § 2253(c)(1). To

obtain a COA, a petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing, an applicant

must demonstrate ‘that reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.’” Allen v. Zavaras, 568 F.3d

1197, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Here, the relevant legal question is whether Brown can mount a due-process

vagueness challenge to his U.S.S.G. § 4B1.1 sentence enhancement. On appeal,

Brown again refashions his argument. He argues that U.S.S.G. § 4B1.1’s use of the

3 Armed Career Criminal Act’s definition of crime of violence, see 18 U.S.C.

§ 924(e)(2)(B), is unlawful under Johnson. Despite Brown’s efforts to frame his

argument to avoid Beckles, that precedent precludes his challenge. Beckles, 137 S.

Ct. at 892 (“[T]he Guidelines are not subject to a vagueness challenge under the Due

Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for

vagueness.”). So he hasn’t shown that reasonable jurists could debate the district

court’s dismissal of his petition.

CONCLUSION

For these reasons, we decline to issue a certificate of appealability. Appellant’s

“Motion to Clarify the Previously filed Certificate of Appealability Request and

Combined Opening Brief,” and the “Motion to Supplement the Previously filed

Request for COA and Combined Opening Brief Based on Intervening Change in Law

Namely Sessions v. Dimaya,” are denied.

Entered for the Court

Gregory A. Phillips Circuit Judge