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United States v. Cesspooch

United States Court of Appeals, Tenth Circuit

October 7, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ALFRED RAY CESSPOOCH, Defendant-Appellant.

          (D. Utah) (D.C. Nos. 2:16-CV-00662-JNP & 2:93-CR-00281-JNP-1)

          Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.

          ORDER

          Per Curiam

         The issue in this appeal involves the timeliness of Mr. Alfred Ray Cesspooch's motion to vacate his sentence. The district court dismissed the motion on the ground that the limitations period had expired. Mr. Cesspooch wants to appeal; to do so, he requests a certificate of appealability and initial consideration en banc. We deny the request for a certificate, dismiss the appeal, and deny the request for initial consideration en banc as moot because absent the grant of a certificate we do not have jurisdiction over the merits of this appeal.

         Mr. Cesspooch committed the offense in 1993; at that time, the United States Sentencing Guidelines were considered mandatory. See, e.g., Burns v. United States, 501 U.S. 129, 133 (1991), abrogated on other grounds, Dillon v. United States, 560 U.S. 817, 820-21 (2010). These guidelines treated an offense as a crime of violence if the offense created "a serious potential risk of physical injury to another." USSG § 4B1.2(a)(1)(ii) (1993).[1] (This provision is commonly known as the "residual clause.")

         The guidelines are now considered advisory rather than mandatory. See United States v. Booker, 543 U.S. 220, 237-39 (2005). After they became advisory, the Supreme Court rejected a vagueness challenge to the guidelines' residual clause. Beckles v. United States, 137 S.Ct. 886, 890, 892, 894-95 (2017). But the Supreme Court has not squarely addressed a vagueness challenge to the guidelines when they were considered mandatory. See id. at 903 n.4 (Sotomayor, J., concurring).

         Mr. Cesspooch contends that given the mandatory nature of the guidelines in 1993, their residual clause should be subject to a vagueness challenge. For this contention, Mr. Cesspooch likens the guidelines' residual clause to an identical statutory clause in the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)), which was struck down in Johnson v. United States as unconstitutionally vague. 135 S.Ct. 2551, 2563 (2015).

         To raise this contention on appeal, Mr. Cesspooch needs a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). This certificate is available only if Mr. Cesspooch shows that reasonable jurists could debate the correctness of the district court's ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). We conclude that Mr. Cesspooch has not made this showing.

         A motion to vacate the sentence is ordinarily due one year from when the judgment became final. 28 U.S.C. § 2255(f)(1). An exception exists when the defendant relies on a new rule of constitutional law that has been deemed retroactive to cases on collateral review. 28 U.S.C. 2255(f)(3). Mr. Cesspooch invokes this exception here based on Johnson. Though Johnson did not address the sentencing guidelines, our later opinion in United States v. Greer did, holding that Johnson had not set out a new constitutional rule applicable to the guidelines when they were considered mandatory. 881 F.3d 1241, 1247-49 (10th Cir.), cert denied, 139 S.Ct. 374 (2018).

         The defendant argues that Greer was abrogated by Sessions v. Dimaya. In Dimaya, the Supreme Court applied Johnson to the definition of a "crime of violence" in 18 U.S.C. § 16(b). Sessions v. Dimaya, 138 S.Ct. 1204, 1213-16 (2018). But after the Supreme Court decided Sessions v. Dimaya, we reiterated in United States v. Pullen that Johnson had not created a new rule of constitutional law applicable to the mandatory guidelines. United States v. Pullen, 913 F.3d 1270, 1284 n.17 (10th Cir. 2019), petition for cert. filed (U.S. July 17, 2019) (No. 19-5219). So Dimaya does not allow Mr. Cesspooch to invoke § 2255(f)(3) based on Johnson.

         Given our decisions in Greer and Pullen, we start the one-year period of limitations from the date on which the conviction became final, not from the date on which Johnson was decided. Applying this limitations period, any reasonable jurist would conclude that Mr. Cesspooch's motion to vacate was untimely.

         Mr. Cesspooch's sentence became final in 1998. United States v. Cesspooch, 145 F.3d 1346 (1998) (unpublished). He then had one year to move to vacate his sentence; but he waited nearly seventeen years, missing the limitations period by about sixteen years. Because Mr. Cesspooch's motion was indisputably untimely, we (1) decline to issue a certificate of appealability, (2) dismiss the appeal, and (3) deny the request for initial consideration en banc as moot because absent the grant of a certificate we do not have jurisdiction over the merits of this appeal.

          Bacharach, J., dissenting.

         I agree with the majority that Mr. Cesspooch's claim fails under Greer and Pullen. But I believe that Mr. Cesspooch has satisfied the low ...


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