United States v. Rogers

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 2, 2022
• Docket: 22-7039
• Status: Unpublished

Opinion

Appellate Case: 22-7039 Document: 010110762080 FILEDPage: 1 Date Filed: 11/02/2022 United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS November 2, 2022 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 22-7039 (D.C. Nos. 6:20-CV-00355-RAW v. & 6:15-CR-00072-RAW-1) (E. D. Okla.) BUDDY KENNY ROGERS,

Defendant - Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before PHILLIPS, MURPHY, and EID, Circuit Judges.

Buddy Rogers, a federal prisoner proceeding pro se, 1 seeks a certificate of

appealability (“COA”) so he can appeal the denial of his 28 U.S.C. § 2255

motion. See 28 U.S.C. § 2253(c)(1)(B) (providing no appeal is allowed from a

“final order in a proceeding under section 2255” unless the movant first obtains a

COA). Most of the issues he raises in his COA application were not raised in his

§ 2255 motion and thus are not properly before this court. As for the issues that

1 We construe Rogers’ filings liberally because he is not represented by counsel. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This court will not, however, act as a pro se litigant’s advocate. Hall, 935 F.2d at 1110. Appellate Case: 22-7039 Document: 010110762080 Date Filed: 11/02/2022 Page: 2

were raised in the § 2255 motion, Rogers has not “made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). Accordingly, we deny his

request for a COA and dismiss this appeal.

In November 2015, Rogers pled guilty to conspiring to possess and to

distribute methamphetamine and heroin in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B), (b)(1)(C), and § 846. The United States Probation Office prepared a

presentence investigation report (“PSR”), which calculated an advisory sentencing

range of 188-235 months based in part on a career-offender enhancement under

U.S.S.G. § 4B1.1. 2 In June 2016, following a sentencing hearing at which Rogers

raised no objections to the PSR, the district court sentenced Rogers to 188 months

of imprisonment. Defense counsel filed a notice of appeal, then submitted an

Anders brief to inform this court that counsel had identified no non-frivolous

issues to raise on appeal. See Anders v. California, 386 U.S. 738 (1967). Rogers

filed a response to the Anders brief, in which he argued that the district court

erred in applying the § 4B1.1 enhancement. This court addressed Rogers’s

§ 4B1.1 argument at length and concluded the enhancement was appropriately

applied based on Rogers’s prior California convictions for possession of

2 “A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).

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marijuana for sale and possession of a controlled substance for sale. United

States v. Rogers, 696 F. App’x 878, 882–85 (10th Cir. 2017). Because § 4B1.1

requires only two qualifying convictions, this court did not decide whether the

enhancement could also be sustained on the basis of Rogers’s prior California

conviction for attempted kidnapping. Id. at 882. Ultimately, this court granted

defense counsel’s motion to withdraw and dismissed the appeal. Id. at 885.

Rogers subsequently filed the instant § 2255 motion. In this motion, he

contended he no longer qualified for a § 4B1.1 enhancement based on new legal

developments that affected the attempted-kidnapping and marijuana convictions.

Specifically, he argued that (1) attempted kidnapping could not be considered a

crime of violence under the Supreme Court’s intervening decision in United

States v. Davis, 139 S. Ct. 2319 (2019), and (2) his marijuana conviction no

longer qualified as a felony controlled-substance offense because a California

court had reduced it to a misdemeanor in July 2017. The district court denied the

§ 2255 motion, and Rogers filed a notice of appeal and opening appellate brief.

Shortly thereafter, Rogers filed a “Motion For Clerical Corrections

pursuant to Federal Rule Criminal Procedure Rule 36,” in which he asked the

district court to reduce his sentence or grant a new sentencing hearing because

(1) the district court used stale convictions to enhance his sentence, and

(2) defense counsel provided ineffective assistance by failing to object to the

PSR. The district court construed this motion as an unauthorized second or

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successive § 2255 motion and dismissed it for lack of jurisdiction. Rogers did not

thereafter file an amended or second notice of appeal.

Rogers’s combined opening brief and application for a COA includes

arguments from his § 2255 motion, arguments from his “Motion for Clerical

Corrections,” and arguments he raises for the first time on appeal. As an initial

matter, we conclude we lack jurisdiction to consider arguments raised in the

“Motion for Clerical Corrections” due to Rogers’s failure to appeal the district

court’s dismissal of that motion. 3 See Stouffer v. Reynolds, 168 F.3d 1155, 1172

(10th Cir. 1999) (holding that where a habeas petitioner raised new arguments in

a Rule 60(b) motion after he had filed his notice of appeal, this court “lack[ed]

jurisdiction to consider” these arguments “absent his filing an amended notice of

appeal or second notice of appeal” to challenge the dismissal of the Rule 60(b)

motion). And, following our “general rule that we do not address arguments

presented for the first time on appeal,” Davis v. Workman, 695 F.3d 1060, 1077

(10th Cir. 2012), we decline to consider Rogers’s newly-raised arguments that he

3 Because Rogers filed his opening appellate brief before he filed his “Motion for Clerical Corrections,” his stale-conviction and ineffective-assistance arguments are framed on appeal as substantive arguments for § 2255 relief rather than as challenges to the district court’s dismissal of the “Motion for Clerical Corrections.” But even if these arguments are viewed as challenges to the original judgment rather than as objections to the district court’s denial of the “Motion for Clerical Corrections,” arguably providing this court with appellate jurisdiction over them, we nevertheless will not consider these arguments based on “the general rule that we do not address arguments presented for the first time on appeal.” Davis v. Workman, 695 F.3d 1060, 1077 (10th Cir. 2012).

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is entitled to habeas relief because the district court incorrectly relied on the

PSR’s description of his prior offenses and inordinately delayed ruling on his

habeas motion. 4

The only arguments that are properly before this court are the arguments

regarding the career-offender enhancement that Rogers first raised in his § 2255

motion. To be entitled to a COA on these arguments, Rogers must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make this showing, he must demonstrate “reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003) (quotations omitted).

Rogers contends his marijuana conviction no longer qualifies as a predicate

offense under § 4B1.1 because a California court reduced it from a felony to a

misdemeanor in July 2017, approximately thirteen months after he was sentenced

4 We note that Rogers’s argument regarding the district court’s reliance on the PSR is also procedurally barred because he could have raised this issue on direct appeal but failed to do so. See United States v. McGaughy, 670 F.3d 1149, 1159 (10th Cir. 2012). As for his inordinate-delay argument, the record reflects that the district court ruled on the § 2255 motion within two years after it was filed. This court has held that even a “seven-and-a-half-year delay in denying [a defendant’s] § 2255 petition [i]s not a denial of due process sufficient to justify granting . . . habeas relief.” United States v. Dago, 441 F.3d 1238, 1249 (10th Cir. 2006). Thus, even if we were to consider these newly-raised issues on appeal, Rogers has not shown that reasonable jurists would debate whether he is entitled to habeas relief on these grounds.

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in this case. Rogers does not explain how this argument makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)

(emphasis added); see also United States v. McCoy, 750 F. App’x 763, 765 (10th

Cir. 2019) (unpublished disposition cited exclusively for its persuasive value)

(denying COA to § 2255 movant who argued “that his California conviction for

possession of marijuana for sale no longer qualifies as a predicate ‘prior felony

conviction’ under U.S.S.G. § 4B1.1 because it is now a misdemeanor conviction”

on the ground that this was “an issue of statutory interpretation” rather than a

constitutional argument). Moreover, Rogers does not dispute that when he was

sentenced in this case his marijuana conviction qualified for the § 4B1.1

enhancement as a controlled-substance offense “punishable by imprisonment for a

term exceeding one year.” U.S.S.G. § 4B1.2(b). He argues that California’s

subsequent reduction of this offense to a misdemeanor retroactively changed this

fact, but the question whether a controlled-substance offense is “punishable” by a

certain term of imprisonment is a “backward-looking question” that requires

courts “to consult the maximum sentence applicable to a defendant’s previous

drug offense at the time of his conviction for that offense.” McNeill v. United

States, 563 U.S. 816, 820 (2011) (emphasis added). The answer to that question

remains unchanged. Accordingly, reasonable jurists would not debate the habeas

court’s denial of Rogers’s request for resentencing based on California’s

reclassification of his marijuana conviction. See United States v. Magana, 850 F.

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App’x 538, 539 (9th Cir. 2021) (unpublished disposition cited exclusively for its

persuasive value) (holding that prior California marijuana conviction qualified as

§ 4B1.1 predicate offense because it was a felony offense at the time of

conviction, even though California had reclassified it as a misdemeanor); United

States v. McGee, 760 F. App’x 610, 616 (10th Cir. 2019) (unpublished disposition

cited exclusively for its persuasive value) (rejecting defendant’s challenge to 21

U.S.C. § 841(b)(1) sentencing enhancement based on subsequent reclassification

of his California marijuana conviction; reasoning that when “a defendant

committed a serious federal drug offense knowing that he had two prior felony

drug convictions, . . . it does not violate due process to deny resentencing even if

a state legislature later graciously decreased the penalty associated with a prior

offense”).

Because the § 4B1.1 enhancement requires only two predicate offenses, it

can be sustained solely on the basis of the marijuana and methamphetamine

convictions. We therefore need not address Rogers’s argument that attempted

kidnapping is not a qualifying crime of violence, as reasonable jurists would not

debate the district court’s ultimate denial of Rogers’s challenge to the § 4B1.1

sentencing enhancement. See Jackson v. State of Utah, 782 F. App’x 690, 695

(10th Cir. 2019) (unpublished disposition cited exclusively for its persuasive

value) (“In determining whether to grant a COA, we review the district court’s

ultimate resolution of a claim—that is, its decision to deny it. Thus, when

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reasonable jurists could not disagree with the district court’s denial of a claim, we

will deny a COA even if they could disagree with particulars of the district

court’s analysis.” (quotations, alterations, and citations omitted)).

We accordingly DENY Rogers’s request for a COA and DISMISS this

appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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