UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CARL WALTON RAYMONDE, Defendant - Appellant. No. 20-1254 (D.C. Nos. 1:18-CV-02246-RBJ & 1:11-CR-00490-RBJ-1) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY 

________________ _________________ Before MORITZ , BALDOCK , and KELLY , Circuit Judges.

________________ _________________ Federal prisoner Carl Walton Raymonde seeks a certificate of appealability (COA) to challenge the district court’s denial of his 28 U.S.C. § 2 255 motion. We deny Raymonde’s request for a COA and dismiss this matter. Background In 2014, Raymonde pled guilty to one count of bei ng a felon in possession of a firearm and ammunition, and one count of posse ssion of methamphetami ne with intent to distribute. Based on Raymonde’s prio r Colorado convictions for menacing and possession with intent to distri bute marijuana, the district court found he was a career

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### May 26, 2021 Christopher M. Wolpert Clerk of Court2 offender under § 4B1.1 of the United States Sentencing Guidelines. In relevant part, § 4B1.1(a) defines a “career offender” as a de fendant who “has at least two prior felony convictions of either a crime of violence or a controlled substance o ffense.” U.S. Sent’g Guidelines Manual (USSG) § 4B 1.1 (U.S. Sent’g Comm’n 2013). 1 The court sentenced him to 120 months on the fe lon-in-possession count and 216 months on the other count, to run consecutively, plus terms of supervised release. We dismissed Raymonde’s direct appeal because it raised no non-frivolous claims. See United States v. Raymonde , 604 F. App’x 751, 753 (10th Cir. 2015). In 2018, Raymonde filed his § 2255 mo tion. He contended that under an intervening decision of this court, United States v. McKibbon , 878 F.3d 967, 976 (10th Cir. 2017), his prior conviction for posse ssion with intent to distribute marijuana under Colorado law was not a qu alifying offense for § 4B1.1 purposes and therefore he was not a career offender. 2 The government did not dispute that asser tion, and the district court agreed with it. But the court dete rmined that even w ithout the marijuana

1 The 2013 Guidelines Ma nual, effective November 1, 2013, applied at Raymonde’s July 2014 sentencing. See USSG § 1B1.11(a)–(b)(1) (U.S. Sent’g Comm’n 2013) (providing that absent any ex post fact o violations, courts must use the Guidelines Manual in effect on the date a defendant is sentenced). In its order denying the § 2255 motion, the district court cite d the 2014 Guidelines Manual as the version applicable at sentencing, but that ve rsion did not take effect until No vember 1, 2014, after Raymonde was sentenced. Indeed, the presentence inve stigation report relied on the 2013 version. But the district court’s citation to the 2014 version is not problematic, because in all relevant respects, it is iden tical to the 2013 version.

2 According to Raymonde, if he was not deemed a career offender, his sentencing range would have been 110-137 months instead of the 188-2 35 months the district court used at sentencing.3 conviction, Raymonde still ha d two qualifying § 4B1.1 o ffenses—the felony menacing conviction it had previously relied on (and which the parties agreed was a qualifying predicate offense) and a 2003 conviction for th ird-degree assault under Colo. Rev. Stat. § 18-3-204. The district court explained th at when it had sentenced Raymonde in 2014, we had held in United States v. Paxton , 422 F.3d 1203, 1206-07 (10th Cir. 2005), that third-degree assault under Colorado law was a crime of violence for § 4B1.1 purposes by virtue of § 4B1.2’s “residual clause.” The residual clause defined § 4B1.1’s term “crime of violence” as an offense “punishable by im prisonment for a term exceeding one year[] that . . . involves conduct that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2 ) (U.S. Sent’g Comm ’n 2013). The district court further noted that two years after Raymonde’s sent encing, Amendment 798 to the Guidelines deleted the residual clause, see USSG Supp. to 2015 Guide lines Manual, Amend. 798 (effective Aug. 1, 2016), bu t the amendment is not am ong those listed in USSG § 1B1.10(d) (U.S. Sent’g Comm’ n 2018) that apply retroactively. The district court therefore concluded that Amendment 798 co uld not provide Raymond e with retroactive relief. Thus, even after eliminating the ma rijuana conviction, Raymonde still had two qualifying § 4B1.1 offenses at the time of his 2 014 sentencing. Consequently, the district court denied his § 2255 motion. The dist rict court also denied Raymonde a COA.
Standard of Review Before he may appeal, Raymonde must obtain a COA. 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, Raymonde must make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2). Because th e district court denied his § 2255 motion4 on the merits, Raymonde can make the required showing by “demonstrat[ing] that reasonable jurists would find the district c ourt’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000).
Discussion Raymonde argues that because Amendmen t 798 deleted § 4B1.2’s residual clause in 2016, the district court’s reliance on the residual clause in 2020 to deny his § 2255 motion violates principles of fundamental fairness inherent in the Fifth Amendment’s guarantee of due process. 3 He largely bases this argum ent on two premises: (1) the United States Sentencing Commiss ion stated that it promulga ted Amendment 798 in light of policy concerns generated by Johnson v. United States , 576 U.S. 591 (2015), where the Supreme Court determined that an iden tical residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e )(2)(b), was unconstitutionally vague and therefore violated the Constitutio n’s guarantee of due process; and (2) he was “sentenced for the first time pursuant to the residual cl ause four years afte r its repeal” through “retroactive application of a rep ealed clause,” COA Appl. at 14. We are not persuaded. Raymonde admits that Beckles v. United States , 137 S. Ct. 886 (2017), forecloses any vagueness challenge to § 4B1.2(a)(2)’s residual clause. See Beckles , 137 S. Ct. at 895 (holding that the a dvisory Sentencing Guidelines “are not

3 Raymonde arguably raised this issue in a pro se submission the district court accepted for filing despite that Raymon de was represented by counsel. See R., Vol. I at 224 (arguing that “[t]he use of a prior o ffense to be applied to Mr. Raymonde’s case now years after he was sentenced retrospectiv ely also violates due process alongside the same principals [sic] of ex-post facto that also apply to New Judicial interpretations of the law”). The district court did not discuss or rule on the issue.5 subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)’s residual clause is not void for vagueness” ). He acknowledges the general rule that district courts must use the Guidelines Manu al in effect when a defendant is sentenced. See supra note 1. And he concedes he is not entitled to retroactive benefit of Amendment 798. 4 We therefore fail to see how any similarity between Johnson and the policy reasons behind Amendment 798’s dele tion of the residual clause renders it

4 Raymonde bases this concession on the Sentenci ng Commission’s failure to expressly make Amendment 798 retroactivel y applicable. The Commission could have done so by listing Amendment 798 in USSG § 1B1.10(d). See USSG § 1B1.10(a) (U.S. Sent’g Comm’n 2018). But Ra ymonde’s concession conflate s principles applying to sentence reductions under 18 U.S.C. § 3582(c)(2 ) with those applying to § 2255 motions. The decision not to list an amendment in USSG § 1B1.10 (d) concerns retroactive applicability in determining “[ e]ligibility for considerati on [for a sentence reduction] under . . . § 3582(c)(2).” USSG § 1B1.10 cmt. n.1 (U.S. Sent’g Comm’n 2018). In direct appeals and § 2255 proceedings, a Guidelines amendment can be retroactive even if it is not listed in § 1B1.10(d), provided it is a clarifying amendment and not a substantive amendment. See United States v. Chavez-Salais , 337 F.3d 1170, 1174-75 (10th Cir. 2003) (explaining that on direct appeal a nd in § 2255 proceedi ngs, “sentencing and reviewing courts may still give retroactive e ffect to amendments that are clarifying (as opposed to substantive ), even if they are not listed in § 1B1.10([d]))” (internal quotation marks omitted)); United States v. Torres-Aquino , 334 F.3d 939, 941 (10th Cir. 2003) (explaining that a defendant is not entitled to a § 3582(c)(2 ) sentence reduction based on an amendment not listed in § 1B1.10(d), and arguments about whether an amendment is clarifying (and therefore retroactive) or substa ntive (and therefore not retroactive) can be raised only on direct appeal or in a § 2255 motion). Raym onde, however, does not argue that we should deem Amendment 798’s deletion of the re sidual clause to be clarifying and retroactive rather than substantive and not retroactive. We therefore need not consider whether that portion of Amendm ent 798 is substantive for purposes of Raymonde’s COA application. However, we note that all other circuits that have considered the issue have determined that the deletion is a substantive change and therefore not retroactive under the clarification doctrine. See United States v. Jackson , 901 F.3d 706, 710 (6th Cir. 2018); United States v. Adkins , 883 F.3d 1207, 1212 (9th Cir. 2018); United States v. Wurie , 867 F.3d 28, 35 & n.7 (1st Cir. 2017); United States v. Gonzales , 714 F. App’x 367, 370-71 (5th Cir. 2017); United States v. Strevig , 663 F. App’x 908, 9 13-14 (11th Cir. 2016).6 reasonably debatable that the district court violated Raymonde’s due process rights when it relied on the residual clause in identifyi ng a second qualifying cr ime of violence and thereby denying his § 2255 motion. Moreover, we disagree with Raymonde’s second premise that the denial of his § 2255 motion four years after Amendment 79 8’s effective date was, in essence, a resentencing that required the district c ourt to evaluate Raymonde’s career-offender status without regard to the residual clause . The denial of the § 2255 motion was not a resentencing but instead a rec onsideration of whether he had two prior convictions at the time of his 2014 sentencing that qualified him as a career offender. Hence, the court did not retroactively apply a deleted or “repea led” Guidelines provision; it applied the residual clause because that clause was in effe ct at the time of Raymonde’s sentencing. This was the proper course under § 2255, which in relevant part directs a court to “vacate and set the judgment aside and . . . resentence” a defendant when the court “finds . . . that the sentence imposed was not au thorized by law.” § 2255( b). By determining that Raymonde was in fact a career-offender at his 2014 sentencing by vi rtue of the menacing and assault convictions, the court found that the sentence it had imposed was authorized by law. It therefore did not need to—and did not—vacate the judgment and resentence Raymonde. Finally, Raymonde relies on our discussion in United States v. Brown , 974 F.3d 1137, 1145 (10th Cir. 2020), regarding a district court’s ability to reconsider, as part of resentencing under the First Step Act, a § 4B1.1 career-offender determination that was based on a legal conclusion re garding § 4B1.2(a)(1)’s elements clause that this court had7 since rejected. 5 Raymonde emphasizes our statements in Brown that the district court was “not required to ignore all decisional la w subsequent to the initial sentencing” and that the court was “not obl igated to err again.” Id. But this discussion turned on the fact that our intervening decisional law “was not an amendment to the law between [the time of the] original sentencing and [the] First St ep Act sentencing; it was a clarification of what the law always was.” Id. Here, as discussed above, see supra note 4, Raymonde has not argued that Amendment 798 is a clar ification of what the Guidelines always provided; he instead admits (cons istent with the conclusions of other circuit courts) that it is not retroactively applicable. Brown , therefore, provides no assi stance in his effort to meet the COA standard. 6

5 The elements clause defines a crime of violence for § 4B1.1(a) purposes as “any offense . . . punishable by impr isonment for a term exceeding one year[] that . . . has as an element the use, attempted use, or threaten ed use of physical force against the person of another.” USSG § 4B1.2(a )(1) (U.S. Sent’g Comm’n 2018).

6 Raymonde also discusses Amendment 798 ’s downward-departu re provision for cases where one or both of a defendant’s prio r felony convictions is based on an offense classified as a misdemeanor at the time of sentencing for the instant federal offense. See COA Appl. at 12-13 (discussing USSG Supp. to 2015 Guidelines Manual, Amend. 798 cmt. 4 (effective Aug. 1, 2016)). We decline to consider this disc ussion because he has not addressed whether that portion of Amendmen t 798 is retroactively applicable and, if so, how it implicates the denial of a constitutional right in this case. See Becker v. Kroll , 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An issue or argu ment insufficiently raised in the opening brief is deemed waived.”).8 Conclusion We deny Raymonde’s application fo r a COA and dismiss this matter.

Entered for the Court

Nancy L. Moritz Circuit Judge