UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. EDWARD NATHAN WING, Defendant - Appellant. No. 17-1007 (D.C. Nos. 1:16-CV-01219-WJM and 1:06-CR-00226-WJM-1) (D. Colorado)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , McKAY , and KELLY , Circuit Judges.

________________ _________________ Through a 28 U.S.C. § 2255 motion, Edward Nathan Wing contests his sentence stemming from a 2006 conviction fo r discharging a firearm during and in relation to a crime of violence, in viol ation of 18 U.S.C. § 924(c)(1)(A)(iii). The offense of assaulting a federa l law enforcement officer w ith a deadly or dangerous weapon, in violation of 18 U. S.C. § 111(a) and (b), served as the crime of violence underlying Mr. Wing’s § 924(c)(1)(A)(iii) co nviction. The district court denied

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 4, 2018
Elisabeth A. Shumaker Clerk of Court2 habeas relief but granted a certificate of appeal ability on the issue of whether Mr. Wing’s “sentence was unconstitutionally enhan ced by [the district court’s] holding that his conviction under 18 U.S.C. § 111 constituted a crim e of violence as defined by 18 U.S.C. § 924(c)(3)(A).” ROA at 110. Pending before this court is Mr. Wing’s unopposed motion to expand th e certificate of appealability to include a challenge to the constitutionality of his § 924(c)(1)(A )(iii) conviction. On appeal, Mr. Wing argues that his § 111(b) offense no longer qualifies as a “crim e of violence” for purposes of § 924(c). While we grant Mr. Wing’s un opposed motion to expand the certificate of appealability, two independent reasons cause us to affirm the district court’s denial of habeas relief. First, Mr. Wing’s habeas moti on is untimely under 28 U.S.C. § 2255(f). Second, consistent with recent precedent, a § 111 offense qualifies as a crime of violence under § 924(c)(3)(A).
I. PROCEDURAL HISTORY In 2006, Mr. Wing pleaded guilty to assaulting a federal law enforcement officer with a deadly or dangerous weapon, in violation of 18 U.S.C. § 111(a) and (b), and discharging a fire arm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The § 924(c)(1)(A)(iii) conviction was premised on Mr. Wing’s § 111 o ffense qualifying as a crime of violence. The district court sentenced Mr. Wing to 120 months ’ imprisonment on the § 924(c)(1)(A)(iii) conviction, to run consecutive to a 27-m onth sentence on the § 111 conviction. On June 26, 2015, the Supreme Court decided Johnson v. United States , holding that the residual clause of the definition of “violent felony” found in 183 U.S.C. § 924(e)(2)(B)(ii), a pr ovision of the Armed Career Criminal Act (“ACCA”), was unconstitutionally vague and could not be relied on to enhance a defendant’s sentence. 135 S. Ct. 2551, 2557–58, 2563 (2015). Subse quently, the Supreme Court determined Johnson announced a new rule of c onstitutional law that applied retroactively for purposes of collate ral review under 28 U.S.C. § 2255. Welch v. United States , 136 S. Ct. 1257 (2016). On May 22, 2016, within one year of the Supreme Court’s decision in Johnson , Mr. Wing filed the § 2255 motion that is the subject of this appeal. Mr . Wing advanced a three-step argument for vacating his § 924(c)(1)(A)(iii) convicti on: (1) the reasoning in Johnson compels the conclusion that the definition of “cr ime of violence” in § 924( c)(3)(B) is unconstitutionally vague; (2) a § 111 offense does not categorical ly involve a sufficien t degree of actual or threatened force to qua lify as a crime of violence under § 924(c)(3)(A); and (3) therefore, his § 111 offense does not qualify as a crim e of violence under either definitional clause in § 924( c)(3). In response, the Government argued that (1) Mr. Wing’s § 2255 motion was untimely because Johnson only addressed the constitutionality of § 924(e)(2)(B)(ii) and did not invalidate § 924(c)(3)(B); and (2) a § 111 offense involves sufficient force to qualify as a crime of violence under § 924(c)(3)(A) such that it is unnecessa ry to resolve Mr. Wing’s constitutional challenge to § 924(c)(3)(B). The district court concluded that Mr. Wing “was convicted not only under § 111(a), but under the aggravated offense pr ovision, § 111(b), which requires as an element not only that [Mr.] Wing acted ‘forci bly’ but also that he used a deadly or4 dangerous weapon in doing so.” United States v. Wing , 2016 WL 6803695, at *6 (D. Colo. Nov. 17, 2016). The district cour t employed the categorical approach and analyzed the degree of force necessary to commit a § 111(b) offense, concluding that the minimum level of actual or threatened force was su fficient for the offense to qualify as a crime of violence under § 924(c)(3 )(A). In so holding, the district court denied habeas relief wit hout addressing the Government ’s timeliness argument. The district court, however, gr anted a certificate of app ealability “on the question of whether [Mr.] Wing’s sentence was unconst itutionally enhanced by [the district court’s] holding that his c onviction under 18 U.S.C. § 111 constituted a crime of violence as defined by 18 U.S.C. § 924(c)(3)(A).” ROA at 110. On appeal, Mr. Wing and the government advance the argum ents that they presented below. Mr. Wing acknowledges th at, to prevail, he must demonstrate both that § 924(c)(3)(B) is unconstitu tionally vague in light of Johnson and that his § 111 conviction is not a crime of violence under § 924(c)(3)(A).
II. ANALYSIS A. Standard of Review “We review the district court’s lega l rulings on a § 2255 motion de novo and its findings of fact for clear error.” United States v. Harris , 844 F.3d 1260, 1263 (10th Cir. 2017). A district court’s determination that an offense qualifies as a crime of violence for purposes of § 924(c) is a legal conclu sion we review de novo. United States v. Serafin , 562 F.3d 1105, 1107 (10th Cir. 2009). Finally, “[w]e are not bound by the district court’s reas oning and may affirm on any gr ound adequately supported5 by the record.” United States v. Greer , 881 F.3d 1241, 1244 (10th Cir. 2018); see Grossman v. Bruce , 447 F.3d 801, 805 n.2 ( 10th Cir. 2006) (“[W]e are free to affirm [the denial of habeas relief] on any ground for which there is a sufficient record to permit conclusions of law.”).
B. Timeliness Although the district court did not ev aluate the timeliness of Mr. Wing’s § 2255 motion, the Government raised th e timeliness issue be low and renewed its timeliness argument on appeal. Based on the record, we conclude Mr. Wing’s § 2255 motion is untimely. Section 2255(f) of Ti tle 28 establishes a one-year limitations period for filing a § 2255 motion, and th e one-year limitations period commences from the latest of – (1) the date on which the judgment of conviction becomes final; (2) the date on which the impedi ment to making a motion created by governmental action in violation of the C onstitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right as serted was initially recognized by the Supreme Court, if that ri ght has been newly recognized by the Supreme Court and made retroa ctively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discove red through the exercise of due diligence. Pointing to the new right recognized in Johnson , Mr. Wing attempts to rely on subsection (f)(3) to establish the start date of the one-y ear limitations period. In relying on subsection (f)(3), Mr. Wi ng argues that the reasoning of Johnson relative6 to the residual clause in § 924(e)(2)(B)(ii) compels th e conclusion that similarly worded language found in § 924(c)(3 )(B) is also unconst itutionally vague. For purposes of determining whether a § 2255 motion is timely, our precedent forecloses Mr. Wing’s attempt to graft the reasoning advanced in Johnson onto a provision outside of § 92 4(e) and the ACCA. In Greer , we grappled with the issue of whether a habeas movant could rely on Johnson to establish th e timeliness of a § 2255 motion challenging a provision of th e United States Sentencing Guidelines. 1 881 F.3d at 1243, 1245–48. Although we ac knowledged that the provision Mr. Greer challenged and the provision invalidated in Johnson were “identically worded,” we concluded Mr. Greer could not rely on Johnson and § 2255(f)(3) to establish the timeliness of his habeas motion. Id. Noting the strict limits placed on § 2255 collateral review by the Antiterrorism and E ffective Death Penalty Act, we reasoned that because the Supreme Court in Johnson specifically limited its holding to the residual clause of § 924(e)(2)(B)(ii), Johnson did not recognize a right regarding the Guidelines provision Mr. Greer challenged. Id. at 1247. Thus, we concluded that “Mr. Greer ha[d] not asserted a right r ecognized by the Supreme Court because Mr. Greer ha[d] not asserted that [an] ‘ACCA sentence’ is no longer valid under Johnson .” Id. Like Mr. Greer, Mr. Wing attempts, through a § 2255 motion, to apply Johnson to a provision outside of the ACCA. Cf. Mathis v. United States , 136 S. Ct.

1 Mr. Greer was sentenced when the Se ntencing Guidelines were mandatory; thus his Johnson -based argument was not foreclosed by Beckles v. United States , 137 S. Ct. 886 (2017). United States v. Greer , 881 F.3d 1241, 1244 (10th Cir. 2018).7 2243, 2247 (2016) (identifying ACCA as 18 U.S.C. § 924(e )). The rationale underlying our decision in Greer is even stronger in Mr. Wing’s case because the provision of § 924(c)(3)(B) that Mr. Wing cha llenges is merely simi lar, rather than identical, to the provision invalidated in Johnson . Specifically, the provision at issue
in Johnson defined “violent felony” to include an offense that “‘invo lves conduct that presents a serious potential risk of physical injury to another.’” Johnson , 135 S. Ct. at 2555 (quoting 18 U.S.C. § 924(e)(2)(B)). Li kewise, the Guidelines provision Mr. Greer challenged defined “crim e of violence” to include an offense that “‘involves conduct that presents a se rious potential risk of physi cal injury to another.’” Greer , 881 F.3d at 1243 (quoting U.S. Sentenci ng Guidelines Manual (“U.S.S.G.”) § 4B1.2(a)). Meanwhile, the provision against wh ich Mr. Wing seeks to advance a Johnson -based challenge defines “crime of violence” as an offense that “involves a substantial risk that physi cal force against the person or property of another may be used in the course of committing th e offense.” 18 U.S.C. § 924(c)(3)(B). Given the textual difference between §§ 924(e)(2)(B)(ii) and (c)(3)(B) and the limited scope of the holding in Johnson , Johnson does not compel the conclusion that § 924(c)(3)(B) is unconstitutionally vague. See Johnson , 135 S. Ct. at 2563 (confining holding to § 924(e)(2)(B)(ii) a nd stating “[t]oday’s decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA’s] definition of a violent felony”). In fact, based on the textual difference, as well as differences in how courts ha ve historically interpreted and applied the two distinct provisi ons, several circuit courts, since Johnson , have8 upheld the constitutionality of § 924(c)(3)(B). See United States v. Hill , 832 F.3d 135, 145–49 (2d Cir. 2016) (concluding that concerns underlying holding in Johnson were not present in § 924(c )(3)(B) and that § 924(c)(3)(B ) is not void for vagueness); United States v. Taylor , 814 F.3d 340, 376–79 (6th Cir. 2016) (concluding that language of § 924(c)(3)(B) is “distinctly na rrower” than § 924(e)(2)(B)(ii), observing that courts have not struggl ed to define and apply § 924 (c)(3)(B) in the way courts “repeated[ly] . . . fail[ed] to craft a principled and obj ective standard” for applying the residual clause of § 92 4(e)(2)(B)(ii), and rejecting Johnson -based challenge to § 924(c)(3)(B) (quotation marks omitted)). 2 From this, it follows that Johnson did not recognize a new right re lative to § 924(c)(3)(B). 3 Therefore, Mr. Wing’s attempt to rely on § 2255(f)(3) to establish the timeli ness of his habeas mo tion fails, and the untimeliness of his habeas mo tion provides sufficient grounds to affirm the district court’s denial of relief. C. Crime of Violence Under § 924(c)(3)(A) Even if, however, Mr. Wi ng could rely on § 2255(f)(3) to establish that his habeas motion was timely, we would affirm the district court’ s denial of relief

2 See also United Stat es v. St. Hubert , 883 F.3d 1319, 1324 (11th Cir. 2018) (rejecting Johnson -based challenge to § 924(c)(3)(B)); United States v. Eshetu , 863 F.3d 946, 953–56 (D.C . Cir. 2017) (same); United States v. Jones , 854 F.3d 737, 739–40 (5th Cir. 2017) (same); United States v. Prickett , 839 F.3d 697, 699–700 (8th Cir. 2016) (per curiam) (relying on Taylor to reject Johnson -based challenge to § 924(c)(3)(B)).

3 Because we conclude that Johnson did not recognize a new right relative to § 924(c)(3)(B), the limited nature of collat eral review prevents us from considering whether § 924(c)(3)(B) is unconstitutionally vague. This question is properly left for another case that comes to us by way of a dire ct appeal from a § 924(c) conviction.9 because Mr. Wing’s habeas motion fails on the merits. Mr. Wing concedes that his § 111 conviction arose under both subsection (a) and (b) of that provision, so we adopt that conclusion when performing our analysis. If a convic tion under § 111(b) qualifies as a “crime of violence” under § 9 24(c)(3)(A), then the constitutionality of § 924(c)(3)(B) is immaterial to whether a § 111(b) offens e qualifies as a “crime of violence.” Section 924(c)(3)(A) of Title 18 define s “crime of violence” to include a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the pe rson or property of another.” We have recently held that a § 111(b) offense qualifies as a “crime of violence” un der U.S.S.G. § 4B1.2(a) because a § 111(b) offense cate gorically entails the actual or threaten ed use of violent physical force regardless of the specific means employe d by a given defendant when committing the offense. United States v. Kendall , 876 F.3d 1264, 1270 –71 (10th Cir. 2017). And, in light of th e fact that § 924(c)(3)(A) a nd U.S.S.G. § 4B1.2(a) both define “crime of violence” to include a felony offense involving the actual or threatened use of physica l force, our precedent in Kendall guides our conclusion that a § 111(b) offense qualifies as a crime of violence under § 924(c)(3)(A). Therefore, even if Mr. Wing could establish that his habeas motion was timely and that Johnson compelled the conclusion that § 924(c)(3 )(B) is unconstitutionally vague, Mr. Wing’s motion still fails on the merits.10 III. CONCLUSION Although we GRANT Mr. Wing’s motion to expand the certificate of appealability to include a ch allenge to his § 924(c)(1)(A)(i ii) conviction rather than just a challenge to his sentence, we AFFIRM the district court’ s denial of relief. First, Mr. Wing fails to establish that his § 2255 motion is timely. Separa tely, even if Mr. Wing could establish th at his § 2255 motion was timely, his motion lacks merit because the § 111(b) offense underlyi ng his § 924(c)(1)(A)(iii) conviction categorically qualifies as a crime of violence under § 924(c)(3)(A). Entered for the Court
Carolyn B. McHugh Circuit Judge