UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DYMOND CHARLES BROWN, Defendant - Appellant. No. 17-7029 (D.C. Nos. 6:16-CV-00251-RAW & 6:06-CR-00069-RAW-1) (E.D. Okla.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

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

________________ _________________ Dymond Charles Brown , a federal prisoner proceeding pro se, see ks a certificate of appealability (COA) under 28 U.S.C. § 2253(c)(1) to challenge the district court’s dismissal of h is second or successive 28 U.S.C . § 2255 petition. 1 We decline to issue him a COA and accordingly now dismiss the appe al.

* This order is not binding preced ent, except under the doctrine s of law of the case, res judicata, and collatera l estoppel. It may be cited, h owever, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32. 1.

1 We liberally construe pro se li tigants’ pleadings, holding the m to “a less stringent standard than formal p leadings drafted by lawyers.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner , 404 U.S. 519, 520–21 (1972)). Though we can’t “assume the role of advocate,” we’ll e xcuse citation gaps, untangle confused legal theor ies, and overlook poor syntax. Id. FILED United States Court of Appeals Tenth Circuit 

### July 18, 2018
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND On February 12, 2007, a jury co nvicted Brown of one count of p ossession of cocaine base with intent to distr ibute in violation of 21 U.S.C . §§ 841(a)(1) and 841(b)(1)(B)(iii). 2 Later that year, a judge sen tenced him to 262 months imprisonment after imposing a car eer-offender enhancement under § 4B1.1 of the United States Sentencing Guidelin es (U.S.S.G.). U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm’n 2007). The court enhanced his s entence under U.S.S.G. § 4B1.1 because he had two prior convictions for crime s of violence: (1) feloniously pointing a firearm in violation of Okla. Stat. tit. 21, § 1289-16; and (2) shooting with intent to kill. 3 On June 10, 2016, Brown timel y moved to file a second or succe ssive 28 U.S.C. § 2255 motion based on Johnson v. United States , 135 S. Ct. 2551 (2015). In that motion, Brown moved to vacat e his sentence because he was sentenced under U.S.S.G. § 4B1.1, which relies on U.S.S.G. § 4B1.2 ’s crime of v iolence definition. And U.S.S.G. § 4B1.2’s crime of violence definition, he contend ed, is unconstitutionally vague under Johnson

. This court granted leave for him to file his second or successive § 2255 moti on. The government then filed a motion to stay the proceedings pending resolution of Beckles v. United States , 137 S. Ct. 886, 895, 897

2 The court sentenced Brown two y ears after the Supreme Court ru led that the sentencing guidelines are advisory in United States v. Booker , 543 U.S. 220, 245–46 (2005).

3 It is unclear from th e record what statute Brown was convicted under for this offense. Because Brown doesn’t c ontend that his conviction for shooting with intent to kill isn’t a crime of violen ce, this gap in the record is im material.3 (2017). Brown objected to this motion and requested bail. But the district court granted the motion to stay and denied Brown bail. Then, on March 6, 2017, the Supr eme Court issued its opinion in Beckles , concluding that Johnson ’s holding doesn’t apply to the career-offender provisions of the advisory sentencing guidelines. Beckles , 137 S. Ct. at 895, 897. Brown moved to supplement his § 2255 petition in light of Beckles , now urging a due-process vagueness challenge based on the sentencing court’s somehow hav ing improperly enhanced his sentenc e by using the statut ory range contained in 21 U.S.C. § 841(b)(1)(B)(iii) and not U.S.S .G. § 4B1.1. The district cour t denied Brown’s second or successive § 2255 petiti on as a thinly-veiled attempt to circumvent
Beckles . The court also denied him a COA. Brown now appeals.
DISCUSSION Before he may appeal, Brown mus t obtain a COA. 28 U.S.C. § 225 3(c)(1). To obtain a COA, a petitioner must m ake “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing, an applicant must demonstrate ‘that reasonable jurists could debate whether . . . the petition should have been resolved in a di fferent manner or that the iss ues presented were adequate to deserve encourag ement to proceed further.’” Allen v. Zavaras , 568 F.3d 1197, 1199 (10th Ci r. 2009) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). Here, the relevant legal quest ion is whether Brown can mount a due-process vagueness challenge to his U.S.S. G. § 4B1.1 sentence enhancemen t. On appeal, Brown again refashions his argum ent. He argues that U.S.S.G. § 4B1.1’s use of the4 Armed Career Criminal Act’s de finition of crime of violence, see 18 U.S.C. § 924(e)(2)(B), is unlawful under Johnson . Despite Brown’s effo rts to frame his argument to avoid Beckles , that precedent precl udes his challenge. Beckles , 137 S. Ct. at 892 (“[T]he Guidelines are not subject to a vagueness ch allenge under the Due Process Clause. The residual clau se in § 4B1.2(a)(2) therefore is not void for vagueness.”). So he hasn’t shown that reasonable jurists could debate the district court’s dismissal of his petition.
CONCLUSION For these reasons, we decline to issue a certificate of appeala bility. Appellant’s “Motion to Clarify the Previous ly filed Certificate of Appealab ility Request and Combined Opening Brief,” and the “Motion to Supplement the Prev iously filed Request for COA and Combined Ope ning Brief Based on Intervening Change in Law Namely Sessions v. Dim aya,” are denied.

Entered for the Court
Gregory A. Phillips Circuit Judge