UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSEPH V. MULAY, Defendant - Appellant. No. 17-3031 (D.C. Nos. 5-16-C V-04075-SAC and 5:01-CR-40033-SAC-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT 

________________ _________________ Before BRISCOE , EBEL , and MATHESON , Circuit Judges.

________________ _________________ In light of the Supreme Court’s decision in Johnson v. United States , 135 S. Ct. 2251 (2015), which held that the “residual clause” of the Armed Career Criminal Act (“ACCA”) defining “violent felony” was vo id for vagueness, Joseph Mulay sought and received authorization from this court under 28 U.S.C. § 2255 (h) to challenge his federal sentence imposed in 2002. He alleged it wa s improperly enhanced under an identicallyworded residual clause in the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) when the Guidelines were mandatory. 1

 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 The Guidelines became a dvisory in 2005 as a result of the Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005). See Gall v. United States , 552 FILED United States Court of Appeals Tenth Circuit 

### February 20, 2018 Elisabeth A. Shumaker Clerk of Court2 The district court denied his motion and granted him a certificate of appealability (“COA”) so that he coul d bring this appeal. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal an order denying a § 2255 motion). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), (c)(1), we affirm because under our recent decision in United States v. Greer , __ F.3d __, 2018 WL 721675 (10t h Cir. Feb. 6, 2018), Mr. Mulay may not challenge his 2002 sentence based on an asserted right that is broader than the one recognized in Johnson

. I. BACKGROUND In 2001, Mr. Mulay pled gu ilty to (1) possession with intent to distribute 151 grams of crack cocaine, in violation of 21 U. S.C. § 841(a)(1); (2) possession with intent to distribute 1.8 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm in furtherance of a dr ug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The Presentence Inve stigation Report (“PSR”) determined Mr. Mulay was a “career offender” under U.S.S.G. § 4B1.1(a) because he had twice been convicted previously of a “crime of violence” as that term wa s defined in § 4B1.2(a). His previous convictions were for criminal threat and aggravated assault. The career offender designation increased Mr. Mulay’s criminal hi story category from III to VI and increased his offense level by one. After other adjust ments, Mr. Mulay had an offense level of 34 and a criminal history category of VI, yielding a Guidelines range of 262 to 327 months in prison.

U.S. 38, 46 (2007) (“As a result of our decision [in Booker ], the Guidelines are now advisory . . . .”). They were mandatory in 2002 when Mr. Mulay was sentenced.3 The Government filed a motion for a do wnward departure under U.S.S.G. § 5K1.1. On February 14, 2002, the district court sentenced Mr. Mulay to 180 months in prison on the first count, 60 months on the se cond count (to be serv ed concurrently), and 60 months on the third count (to be served co nsecutively), for a total of 240 months in prison. On direct appeal, this court reje cted Mr. Mulay’s argument that his criminal threat conviction was not a crime of violence. See United States v. Mulay , 77 F. App’x 455, 457-58 (10th Cir. 2003) (unpublished). In 2014, Mr. Mulay moved under 28 U.S.C. § 2255 to vacate his sentence, arguing his criminal threat conviction could no lo nger qualify as a crime of violence after United States v. Brooks , 751 F.3d 1204 (10th Cir. 2014), whic h held an offense cannot be a “crime of violence” unless a defendant could have received more than 12 months in prison for the offense. See United States v. Mulay , 642 F. App’x 853, 854 (10th Cir. 2016) (unpublished). We denied a COA be cause his claim did not allege federal constitutional error. Id. at 855. In 2016, Mr. Mulay sought leave to file a second or successive § 2255 motion to challenge his sentence after the Supreme Court’s decision in Johnson . We granted permission. He then filed a § 2255 motion in district court, in which he contended that, under Johnson , the residual clause in the mandatory Guidelines, like the ACCA’s residual clause, was void for vagueness. Mr. Mulay argue d that neither his aggravated assault nor his criminal threat conviction qualified as a crime of violence without the residual clause, and therefore his sentence shou ld be vacated. The Gove rnment agreed that, under Johnson , Mr. Mulay’s criminal threat conviction would no longer qualify as a predicate4 crime of violence, leaving only one predicate offense instead of the two needed to apply the § 4B1.1(a)(3) career offender enhancem ent. But the Government argued that, although Johnson should apply to the Guidelines, it does not apply retroactively on collateral review to Mr. Mulay’s sentence. The district court agreed with the Government and denied Mr. Mulay’s motion, ruling that Johnson cannot be applied retroactively to challenge a Guidelines sentence on collateral review. United States v. Mulay , Nos. 01-40033-01-SAC, 2017 WL 373382, at *5-*7 (Jan. 26, 2017). The cour t said that new rules of c onstitutional law are retroactive on collateral review only if they are subs tantive or “watershed rules of criminal procedure,” and the Johnson rule is procedural rather th an substantive when applied to the Guidelines. Id. at *2-3, *6 (quoting Montgomery v. Louisiana , 136 S. Ct. 718, 728 (2016)). It distinguished applying Johnson to the Guidelines as opposed to the ACCA, mistakenly describing the 2002 Guidelines as “advisory” th at “only guide a sentencing court’s exercise of discretion.” Id. at *5. The court overlooked that Mr. Mulay was sentenced when the Gu idelines were still mandatory. The court issued a COA on the question of Johnson ’s retroactive application to th e mandatory Guidelines, and Mr. Mulay timely appealed. Shortly after the district court’s decision, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), holding that Johnson does not apply to the advisory Guidelines. Id. at 895. In 2002, when Mr. Mulay was sentenced, the Guidelines said a defendant was a “career offender” when “the defendant has at l east two prior felony convictions of either5 a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3) (2002). Section 4B1.2 defined “crime of violence”: (a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or ex tortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

. Id. at § 4B1.2(a). The italicized portion was the residual cl ause. It was identical to the residual clause in the ACCA that Johnson held unconstitutional. 2 After Johnson , the Sentencing Commission amended § 4B1.2(a)(2) to eliminate the residual clause. See U.S.S.G. Supp. to App. C, Amend. 798 at 125 (Aug. 1, 2016). But when Mr. Mulay was sentenced in 2002, § 4B1.2(a)(2) still contained the re sidual clause, and the Guidelines were mandatory.

2 The ACCA previously defined “violent felony” as follows: [A]ny crime punishable by imprisonment for a term exceeding one year . . . that— (i) has as an element the use, a ttempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or exto rtion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

. 18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion was known as the “residual clause.” Johnson , 135 S. Ct. at 2555-56.6 II. DISCUSSION “[W]e review the district court’s legal rulings on a § 2255 motion de novo and its findings of fact for clear error.” United States v. Miller , 868 F.3d 1182, 1187 (10th Cir. 2017) (quotation omitted). On this appeal, Mr. Mulay argues that, under Johnson , his sentence should be vacated because it was enhanced under the re sidual clause in § 4B1.2(a)(2) when the Guidelines were mandatory, and that clause, lik e the identically worded residual clause in the ACCA, should be held void for vagueness under Johnson

. The Government argues we should affirm the district court’s denial of § 2255 relief for three reasons: (1) Mr. Mulay’s § 22 55 motion was untimely, (2) he procedurally defaulted his void-for-vagueness argument by no t raising it on direct appeal, and (3) he may not rely on Johnson to bring a retroactive challenge to his 2002 sentence because the right he asserts is broader than the one recognized in Johnson

. As the following discussion concludes, the Government waived its timeliness argument, and, although we may address pr ocedural default despite the Government’s tardiness in raising it, we ch oose to resolve this appeal on the ground that Mr. Mulay cannot rely on Johnson to bring a retroactive challenge to his sentence on collateral review because the right he asse rts here was not recognized in Johnson

. 1. Timeliness The Government belatedly argues Mr. Mulay’s motion was untimely because he did not file it within one year of when the Supreme Court decided Johnson

.7 A § 2255 motion must generally be filed w ithin one year of “the date on which the judgment of conviction becomes final.” See § 2255(f)(1). But it may be brought after that time period if the movant asserts a right within one year of “t he date on which the right asserted was initially recognized by the Su preme Court, if that right has been newly recognized by the Supreme Court and made retr oactively applicable to cases on collateral review.” § 2255(f)(3). The Government failed to cha llenge timeliness in the district court. Courts may consider timeliness sua sponte unless the gover nment affirmatively waives the issue. Wood v. Milyard , 566 U.S. 463, 473-74 (2012). But here the Government intentionally relinquished or abandoned any timeliness defens e. We would abuse our discretion if we were to address an intentio nally abandoned argument. Id. at 474. In Wood , the Supreme Court held the governme nt had waived a timeliness defense by stating to the district court it “[would] not challenge, but [was ] not conceding” the motion’s timeliness. Id. In this case, the Government argues for the first time in its second supplemental brief that Mr. Mulay’s § 2255 motion was untimely because, even though Mr. Mulay filed within one year of Johnson , he did not assert a right “recognized” by the Supreme Court. Although we addre ss this point later in our discussion of retroactive application of Johnson, we do not address it here because the Government waived the time liness issue. After the Government failed to raise time liness in the district court or in its opening or reply briefs on this appeal, we asked the parties to file supplemental briefs addressing the “timeliness of Mr. Mulay’s mo tion under 28 U.S.C. § 2255” in light of8 United States v. Snyder , 871 F.3d 1122, 1126 (10th Cir. 2017). In response, the Government again declined to challenge th e timeliness of Mr. Mulay’s motion. It acknowledged it had not raised timeliness and thus the “timeliness portion of the Snyder decision and of [Mr.] Mulay’s motion are not implic ated here.” Aplee. Supp. Br. at 6 n.2. Only after we asked the parties to file add itional supplemental briefs did the Government argue timeliness for the first time. Aplee. Second Supp. Br. at 6-9. At oral argument, the Government acknowledged that this court “could reasonably conclude that [the Government has] affirmatively waived the timeliness defense.” Oral Arg. at 11:55-12:38. We conclude the Government wa ived the timelin ess issue. 2. Procedural Default The Government argues Mr. Mulay ha s defaulted any claim that the § 4B1.2(a)(2) residual clause was void for vagueness because he did not raise it at sentencing or on direct appeal. See United States v. McGaughy, 670 F.3d 1149, 1159 (10th Cir. 2012) (stati ng the general rule that a defendant ’s failure to raise an issue on direct appeal procedurally defaults th e opportunity to raise it in a § 2255 motion unless he or she can show cause and prej udice). Mr. Mulay did not present his vagueness challenge on direct appeal, but the Governme nt likewise did not raise procedural default until this § 2255 appeal. It now urges us to consider procedural default sua sponte. We may do so if it would further “the in terests of judicial efficiency.” United States v. Allen , 16 F.3d 377, 378 (10t h Cir. 1994) (quoting Hines v. United States , 971 F.2d 506, 509 (10th Cir. 1992)). But we find it more efficient9 to affirm the denial of Mr. Mulay’s motion based on the following retroactivity analysis. 3. Retroactivity on Collateral Review Mr. Mulay has not asserted a right that is retroactive on collateral review. We therefore affirm the decision of the district court denying his motion under 28 U.S.C. § 2255.

a. Legal background Under Justice O’Conno r’s plurality opinion Teague v. Lane , 489 U.S. 288 (1989), a new constitutional rule of criminal procedur e is not generally applicable to cases on collateral review. Id. at 310. 3 But substantive rules are not subject to this general retroactivity bar. Welch v. United States , 136 S. Ct. 1257 (2016). A rule is “substantive rather than procedural if it al ters the range of conduct or th e class of persons that the law punishes.” Id . at 1264-65 (quoting Schriro v. Summerlin , 542 U.S. 348, 353 (2004)). A rule is “new” if it “was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague , 489 U.S. at 301. In Welch , the Supreme Court determined that Johnson recognized a new substantive rule because it altered the sentence that a defendant could legally receive. Id . at 1265. Johnson is therefore retroactively applicable to cases on collateral review.

3 Although Teague was a plurality opinion, a majori ty of the Court adopted the Teague rule in Penry v. Lynaugh , 492 U.S. 302, 313 (1989). Teague concerned a 28 U.S.C. § 2244 challenge to a state convicti on, but we have held its “nonretroactivity doctrine applies equally to habeas petiti ons brought under sec tions 2254 and 2255.” Daniels v. United States , 254 F.3d 1180, 1194 (10th Cir. 2001).10 In Greer , however, this court recently said the right recognized by Johnson —and thus the right held retroac tive on collateral review in Welch —is limited to a “defendant’s right not to have his senten ce increased under the residual clause of the ACCA.” 2018 WL 721675 at *5. This court recently held that a § 2255 motion ne ed only “invoke” a newly recognized right to be timely. See Snyder , 871 F.3d at 1126. Applying the Snyder standard in Greer , we held a movant who had been sentenced under the mandatory Guidelines rather than the ACCA had not invoked such a right. 2018 WL 721675 at *5. We affirmed denial of the § 2255 motion as untimely because the movant had not “asserted [the] right recognized by the Supreme Court” in Johnson not to be sentenced under the ACCA’s residual clause. Id. at *4. b. Analysis For Mr. Mulay to receive § 2255 relief, we must find that the residual clause in § 4B1.2(a)(2) of the mandatory Guidelines wa s void for vagueness, and that the right not to be sentenced under the manda tory residual clause is retr oactively applicable to his 2002 sentence on collateral review. M r. Mulay’s only argument in support of retroactivity is that the right he asserts was recognized in Johnson , which the Supreme Court held retroactive on collateral review in Welch . But because Johnson did not recognize the right Mr. Mulay asserts, Mr. Mulay is not entitled to relief. Mr. Mulay argues that “Johnson newly recognized a due process right not to have one’s criminal sentence fixed based on” the la nguage of the residual clause, and that the Court held that this right was re troactive on collateral review in Welch . Aplt. Reply Br. at 19. But in Greer, as noted above, we said the right recognized in Johnson is not so11 broad—“the only right recognized by the Supreme Court in Johnson was a defendant’s right not to have his senten ce increased under the residual clause of the ACCA.” 2018 WL 721675 at *5; see also Beckles , 137 S. Ct. at 903 n.4 (Sot omayor, J., concurring) (stating the majority’s “formalistic dis tinction between mandatory and advisory rules . . . leaves open the question whet her defendants sentenced to terms of imprisonment” when the Guidelines were mandatory may challenge their sentences on vagueness grounds). Although Welch held that a Johnson claim may be retroactively applicable on collateral review, Greer held the right recognized in Johnson did not extend to the right Mr. Mulay asserts here. He therefore is not entitled to § 2255 relief. III. CONCLUSION The decision of the district court de nying Mr. Mulay’s moti on under 28 U.S.C. § 2255 is affirmed.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge