United States v. Safford , 707 F. App'x 571 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-8029
v. (D.C. No. 1:16-CV-00154-SWS)
(D. Wyo.)
AARON NEAL SAFFORD,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
_________________________________
Defendant Aaron Neal Safford seeks a certificate of appealability (COA) to appeal
the dismissal by the United States District Court for the District of Wyoming of his
motion under 28 U.S.C. § 2255 challenging his sentence. See 28 U.S.C. § 2253(c)(1)(B)
(requiring COA to appeal denial of relief under § 2255). We grant a COA but affirm the
dismissal on the merits. Although Johnson v. United States, 135 S. Ct. 2551, 2557
(2015), held that the residual clause of the Armed Career Criminal Act (ACCA), 18
*
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 This order and judgment is not binding precedent, except under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.
U.S.C. § 924(e),1 violates due process because it is unconstitutionally vague, Defendant
was not sentenced under that clause.
In February 2010, Defendant pleaded guilty to one count of being a felon in
possession of a firearm. See 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The presentence
report, without objection from Defendant, determined that Defendant was subject to the
mandatory minimum 15-year sentence imposed by the ACCA because he had three
predicate convictions: namely, two convictions for serious drug offenses (unlawful
distribution of a controlled substance) and one conviction for a violent felony (burglary
under Wyoming law). On May 14, 2010, Defendant was sentenced to 15 years’
imprisonment. He did not appeal.
A year later, Defendant moved for relief under § 2255, claiming that his counsel
was ineffective for failure to advise him of the consequences of his guilty plea. The
district court set an evidentiary hearing and appointed counsel to represent Defendant,
instructing counsel to pay particular attention to (1) whether Defendant’s attorney
advised him of the 15-year mandatory minimum, (2) whether Defendant had a full
understanding of his potential sentence, and (3) whether Defendant would still have
pleaded guilty had he known he faced a potential 15-year mandatory minimum sentence.
1
The ACCA defines a violent felony as any offense that (1) “has as an element the use,
attempted use, or threatened use of physical force against the person of another” (the
elements clause); (2) “is burglary, arson, or extortion, [or] involves use of explosives”
(the enumerated-offenses clause); or (3) “otherwise involves conduct that presents a
serious potential risk of physical injury to another” (the invalidated residual clause). 18
U.S.C. § 924(e)(2)(B). The statute imposes enhanced sentences on certain defendants
with three previous convictions for violent felonies or serious drug offenses. See id. at
§ 924(e)(1).
2
Before the scheduled hearing, Defendant’s newly appointed attorney and the
government filed with the district court a “Stipulated Motion for Dismissal with
Prejudice.” Although the motion said that defense counsel had determined that
Defendant had not been adequately advised by his counsel regarding the ACCA sentence,
it further stated that Defendant was eligible to be sentenced under the ACCA, in part
because his prior conviction for burglary was a conviction for generic burglary, which is
an enumerated offense under the ACCA; and, most notably, it said that Defendant now
believed that, even had he been properly advised, he would still have pleaded guilty. The
court granted the motion to dismiss with prejudice on February 19, 2013.
In June 2015 the Supreme Court’s decision in Johnson held that the residual
clause of the ACCA is unconstitutional. After Welch v. United States, 136 S. Ct. 1257,
1265 (2016), held that Johnson is to be applied retroactively to cases on collateral review,
Defendant obtained authorization from this court to file a second-or-successive motion
under § 2255 to argue that Johnson invalidated his ACCA sentence enhancement. Upon
consideration of the motion, however, the district court dismissed it because the
sentencing court had not relied upon the now-invalid residual clause.
After Defendant filed his initial pro se brief, we granted his motion to appoint
counsel. Counsel’s brief sharpens and expands the arguments in the pro se brief. It relies
on Johnson, but only indirectly. The central point of the brief is that Defendant’s
Wyoming burglary conviction cannot serve as an ACCA predicate under the enumerated-
offenses clause if the court applies the approach of Mathis v. United States, 136 S. Ct.
2243 (2016), which abrogated Tenth Circuit precedent holding that Wyoming burglary
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could be a violent felony under that clause. He argues that Johnson is relevant because
pre-Johnson it would have been futile to challenge Wyoming burglary as not coming
under the enumerated-offenses clause. Until Johnson, he argues, the application of the
residual clause would have defeated any claim that the burglary conviction was not a
predicate offense under the ACCA. In other words, he contends that he is truly raising a
Johnson claim because his Mathis claim did not become ripe until Johnson, even though
he is not raising a due-process vagueness claim. Further, Defendant contends that his
sentence violates due process because he is statutorily ineligible for that sentence.
We are not persuaded. We rejected the same arguments in United States v.
Westover, No. 17-8013, 2017 WL 4900449 (10th Cir. Oct. 31, 2017). As we stated there,
our opinion in United States v. Snyder, 871 F.3d 1122, 1128–29 (10th Cir. 2017), requires
us to evaluate Johnson claims by examining the record to determine whether the ACCA
sentence enhancement was in fact based on the residual clause. The “mere ‘option’ of
applying the ACCA’s residual clause [does not] constitute[] a Johnson error.” Id. at *3.
What Defendant is attempting is to leverage the irrelevant Johnson decision to enable
him to apply Mathis retroactively. We can admire the effort, but we cannot permit such a
circumvention of habeas law.
4
We AFFIRM the denial of Defendant’s motion. We DENY defendant’s Motion
for leave to proceed in forma pauperis as moot.
Entered for the Court
Harris L Hartz
Circuit Judge
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