UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JASON GREER, 

 Defendant - Appellant. 

No. 16-1282 

(D.C. Nos. 1:16-CV-01111-LTB and 

1:02-CR-00184-LTB-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges. 

_________________________________ 

Jason Greer appeals from the district court’s judgment denying him relief on 

his second motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. 

Greer sought to invalidate his sentence to the extent that it was based on his status as 

a career offender under the advisory Sentencing Guidelines. Greer’s claim is 

foreclosed by the Supreme Court’s decision in Beckles v. United States, __ U.S. __, 

137 S. Ct. 886 (2017). Consequently, exercising jurisdiction under 28 U.S.C. § 1291, 

we affirm the district court’s judgment. 

 *

 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

April 5, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

 “Greer was convicted following a guilty plea of one count of armed bank 

robbery, in violation of 18 U.S.C. § 2113(a) and (d). The district court sentenced him 

to 188 months’ imprisonment, followed by a five-year term of supervised release.” 

United States v. Greer, 85 F. App’x 181, 181-82 (10th Cir. 2004) (Greer I) 

(unpublished). The district court based Greer’s sentence, in part, on a finding that he 

qualified as a career offender under the advisory Sentencing Guidelines because he 

had at least two prior felony convictions for crimes of violence. See id. at 182; U.S. 

Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2002) (USSG). 

We dismissed his direct appeal. See Greer I, 85 F. App’x at 184. And the district 

court denied his first § 2255 motion. 

In 2016, Greer moved for authorization to file a second § 2255 motion based 

upon the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 

(2015). Johnson voided, in part, the definition of a qualifying “violent felony” used 

for sentence enhancement under the Armed Career Criminal Act (ACCA). Id. at 

2563. The Supreme Court held that the “residual clause” in the definition—covering 

crimes “involv[ing] conduct that presents a serious potential risk of physical injury to 

another,” 18 U.S.C. § 924(e)(2)(B)(ii)—violated the constitutional prohibition 

against vague criminal laws and that an increased sentence based on that clause 

violates a defendant’s right to due process. Johnson, 135 S. Ct. at 2557, 2563. In 

Welch v. United States, __ U.S. __, 136 S. Ct. 1257, 1268 (2016), the Court made 

Johnson’s holding retroactive to cases on collateral review. 
3 

This court extended Johnson’s holding to identical residual-clause language 

previously used to define “crime of violence” in the career-offender guideline, USSG 

§ 4B1.2(a)(2). See United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 

2015). We authorized Greer to file a second § 2255 motion challenging his 

career-offender sentence because at least one of his prior convictions qualified as a 

crime of violence under the residual-clause definition in § 4B1.2(a)(2). See In re 

Greer, No. 16-1179, slip op. at 1 (10th Cir. May 13, 2016); see also In re Encinias, 

821 F.3d 1224, 1226 (10th Cir. 2016) (challenge to a sentence that was enhanced 

based on the residual clause in § 4B1.2(a)(2) is “sufficiently based on Johnson to 

permit authorization under § 2255(h)(2)”). 

The district court denied Greer’s second § 2255 motion. It held that he still 

had at least two prior convictions that qualified as crimes of violence as defined in 

the Guidelines without applying the residual clause. The district court granted Greer 

a certificate of appealability. “We review the district court’s legal rulings on a 

§ 2255 motion de novo and it findings of fact for clear error.” United States v. 

Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (internal quotation marks and alteration 

omitted). 

Greer argues that his prior conviction for assault on a peace officer under 

Colorado law is not a crime of violence because that offense does not “ha[ve] as an 

element the use, attempted use, or threatened use of physical force against the person 

of another,” as required by USSG § 4B1.2(a)(1). We need not decide this question. 

After we docketed Greer’s appeal, the Supreme Court issued its decision in Beckles. 
4 

Like Greer, the petitioner in Beckles sought to invalidate his sentence to the extent 

that it was based on § 4B1.2(a)’s residual clause. See Beckles, 137 S. Ct. at 891. 

Contrary to our decision in Madrid, the Supreme Court rejected the petitioner’s claim 

that the career-offender residual clause is void for vagueness under the reasoning in 

Johnson. See id. at 895. The Court distinguished its holding in Johnson, explaining: 

Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible 

range of sentences. To the contrary, they merely guide the exercise of a 

court's discretion in choosing an appropriate sentence within the statutory 

range. Accordingly, the 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. 

Id. at 892. Thus, Beckles forecloses any claim that a Guidelines provision is subject 

to a vagueness challenge. Greer’s claim that his sentence is invalid because 

§ 4B1.2(a)(2)’s residual clause is void for vagueness fails as a matter of law. 

 The district court’s judgment is affirmed. 

Entered for the Court 

Harris L Hartz 

Circuit Judge