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-C V-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 v acate, set aside or co rrect his sentence. Greer sought to invalidate hi s sentence to the extent that it was based on his status as a career offender under the advisory Se ntencing 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, exer cising jurisdiction unde r 28 U.S.C. § 1291, we affirm the distri ct court’s judgment.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 “Greer was convicted following a gu ilty 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 fi ve-year term of supe rvised 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 United States v. Greer , 85 F. App’x 181, 181- 82 (10th Cir. 2004) ( Greer I ) (unpublished).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 advi sory Sentencing Guidelines because he had at least two prior felony convic tions 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 fi rst § 2255 motion. In 2016, Greer moved for authorizati on 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 Ar med Career Criminal Act (ACCA). Id. at 2563. The Supreme Court held that the “r esidual clause” in th e 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 ri ght 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 car eer-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-cl ause 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 se ntence that was enhanced based on the residual clause in § 4B 1.2(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 convictio ns 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) (i nternal quotation ma rks and alteration omitted). Greer argues that his prior convicti on for assault on a peace officer under Colorado law is not a crime of violence becau se that offense does not “ha[ve] as an element the use, attemp ted use, or threatened use of physical force against the person of another,” as required by USSG § 4B1.2(a)(1 ). We need not d ecide 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 hi s 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 reject ed the petitioner’s claim that the career-offender residua l clause is void for vaguen ess under the reasoning in Johnson

. See id. at 895. The Court di stinguished its holding in Johnson , explaining: Unlike the ACCA, . . . the advisory Gu idelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appr opriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Cl ause. 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 clau se is void for vagueness fail s as a matter of law. The district court’s judgment is affirmed.

Entered for the Court

Harris L Hartz Circuit Judge