UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

MICHAEL SHANE LOURCEY 

CLEMENTS, 

 Defendant - Appellant.

No. 23-8083

(D.C. Nos. 2:23-CV-000171-NDF &

1:22-CR-00045-NDF-1)

(D. Wyo.)

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ORDER DENYING CERTIFICATE OF APPEALABILITY*

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Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges.

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Defendant Michael Clements, a federal prisoner appearing pro se, seeks a 

certificate of appealability (COA) in order to appeal the district court’s denial of his 

motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. We deny a COA 

and dismiss this matter.

I

In March 2022, a federal grand jury indicted Clements on two counts of 

distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), 

and one count of possession of child pornography, in violation of 18 U.S.C. 

* This order is not binding precedent except under the doctrines of law of the case, 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

February 22, 2024

Christopher M. Wolpert

Clerk of Court

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§ 2252A(a)(5)(B) and (b)(2). On June 30, 2022, Clements pleaded guilty to the 

possession charge in exchange for the government’s agreement to dismiss the two 

distribution charges. 

On August 10, 2022, the probation office prepared and submitted to the district 

court and the parties a presentence investigation report (PSR). The PSR applied a base 

offense level of 18 pursuant to U.S.S.G. § 2G2.2(a)(1). The PSR then applied five 

enhancements based on specific offense characteristics: (1) a 2-level enhancement 

pursuant to U.S.S.G. § 2G2.2(b)(2) because the material involved a prepubescent minor 

or a minor who had not yet attained the age of 12 years; (2) a 2-level enhancement 

pursuant to U.S.S.G. § 2G2.2(b)(3)(F) because Clements distributed child pornography to 

others; (3) a 4-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4)(A) and (B) because 

Clements possessed images portraying sadistic or masochistic conduct, as well as images 

of infants or toddlers; (4) a 2-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(6) 

because Clements possessed the prohibited images on a cell phone; and (5) a 5-level 

enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(D) because the offense involved 600 or 

more images. The PSR in turn applied a 2-point reduction pursuant to U.S.S.G. 

§ 3E1.1(a) because Clements clearly demonstrated acceptance of responsibility for the 

offense, and a 1-point reduction pursuant to U.S.S.G. § 3E1.1(b) because Clements 

assisted authorities in the investigation or prosecution of his own misconduct by timely 

notifying authorities of his intent to enter a plea of guilty. Ultimately, the PSR arrived at 

a total offense level of 30. As for Clements’s criminal history, the PSR assigned 3 points 

to a March 8, 2017 federal conviction for possession of child pornography. The PSR also 

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added 2 criminal points pursuant to U.S.S.G. § 4A1.1(d) because Clements committed 

the offense of conviction while still serving a term of supervised release for the 2017 

federal conviction. This resulted in a total criminal history score of 5 and a criminal 

history category of III. Together, the total offense level of 30 and the criminal history 

category of III resulted in a Guidelines imprisonment range of 121 to 151 months. The 

PSR also noted that, pursuant to 18 U.S.C. § 2252A(b)(2), the statutory minimum term of 

imprisonment was 10 years. 

On September 6, 2022, the district court sentenced Clements to a term of 

imprisonment of 120 months, to be followed by a five year term of supervised release. 

Final judgment was entered in the case that same day. Clements did not file a direct 

appeal.

On September 18, 2023, Clements filed a pro se motion to vacate, set aside, or 

correct sentence pursuant to 28 U.S.C. § 2255. Clements alleged in his motion that his 

trial counsel “was ineffective . . . for failing to know and understand relevant sentencing 

factors that would have mitigated [his] sentence.” ROA, Vol. 2 at 5. Specifically, 

Clements alleged that his trial counsel should have asked the district court to apply the 

safety-valve provision set forth in 18 U.S.C. § 3553(f) and impose a sentence less than 

the otherwise applicable statutory minimum sentence of ten years. Clements argued that 

“[p]ost first step act the safety valve now reads in the conjunctive,” “mean[ing] that in 

order to be exempt from the safety valve a person would need to have more than 4 

[criminal history] points and a 3 point offense and a 2 point violent offense.” Id. at 11. 

Clements argued that he was thus eligible for safety-valve relief because, at the time of 

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the offense of conviction in this case, his criminal history included only a prior 3-point 

offense and a prior 2-point offense that was not violent.

The government filed a brief in opposition to Clements’s § 2255 motion. The 

government noted that § 3553(f) “appl[ies] only to a very limited class of enumerated 

crimes primarily concerned with controlled substances” and excluding Clements’s

offense of conviction. Id. at 18. Consequently, the government argued that Clements 

was ineligible “for a below mandatory minimum sentence pursuant to § 3553(f).” Id. 

The government in turn argued that “there [wa]s simply no reasonable probability 

[Clements] would have received a sentence under § 3553(f) even had his lawyer made the 

attempt.” Id. at 19. 

On November 9, 2023, the district court issued an order denying Clements’s 

§ 2255 motion. In doing so, the district court “agree[d] with the Government” that 

§ 3553(f) was “plainly inapplicable” because Clements’s offense of conviction “was 

excluded from th[e] list” of offenses eligible for safety-valve relief under § 3553(f). Id. 

at 25. The district court in turn concluded that Clements’s “ineffective assistance claim 

[wa]s predicated on an issue without merit[].” Id. at 26.

Judgment was entered in the case on November 9, 2023. The judgment stated, in 

relevant part, that Clements was “not entitled to relief pursuant to 28 U.S.C. § 2255” and 

that “no [COA] shall issue.” Id. at 27. 

Clements filed a notice of appeal on December 1, 2023. He has since filed an 

application for COA with this court.

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II

A COA is a jurisdictional prerequisite for appellate review of the denial of a 

§ 2255 motion. United States v. Parker, 720 F.3d 781, 785 (10th Cir. 2013). To obtain a 

COA, a defendant must make “a substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2). This standard requires a defendant to “demonstrate that 

reasonable jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

As we have noted, Clements argued in his § 2255 motion that his trial counsel was 

ineffective for failing to recognize and argue that Clements was eligible for safety-valve 

relief under § 3553(f). To prevail on this claim, Clements must first show that his trial 

counsel’s performance was deficient, meaning that it fell “below an objective standard of 

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). If Clements can 

make this showing, he then must demonstrate that his trial counsel’s deficient 

performance prejudiced him, which requires him to show “a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. 

Clements cannot make the first of these showings because, as the district court 

correctly noted, Clements is ineligible for safety-valve relief under § 3553(f). Section 

3553(f), by its express terms, applies to a limited range of controlled substance offenses. 

It does not, as the district court noted, apply to child pornography offenses, such as 

Clements’s offense of conviction. Thus, we conclude that the district court correctly 

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rejected Clements’s ineffective assistance of counsel claim, and we in turn conclude that 

reasonable jurists could not disagree with the district court’s resolution of that claim.

III

For the reasons stated above, we DENY Clements’s application for COA and 

dismiss this matter.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

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