UNITED STATES COU RT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 18-1301

v. (D.C. Nos. 1:18-CV-01116-JLK & 1:12-CR-00450-JLK-1) (D. Colo.) JAMES P. BURG, Defendant-Appellant.

ORDER AND JUDGMENT *

Before BACHARACH , MURPHY, and MORITZ, Circuit Judges. Mr. James P. Burg was convicted o n federal charges of mail frau d and willful failure to file a tax return, sentenced to 90 month s’ imprisonment, and ordered to pay $2,464,099 in restitution. Aft er unsuccessfully appealing his se ntence based on substantive reas onableness, Mr. Burg sought to vac ate his sentence unde r 28 U.S.C . § 2255, arguing

* Oral argument would no t materially help us t o decide this appea l. We have thus decided the appeal based on the appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgme nt does not constitut e binding precedent except under the doctrines of law of the case, res judicata, and colla teral estoppel. But the order and judgment may be cited for its persuasive valu e if otherwise appropriate. Fed. R. A pp. P. 32.1(a); 10th Cir. R. 32 .1(A). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 that the sentencing court had erred in c onsidering conduct not resulting in a conviction. The dist rict court denied the motion as untimely, prompting Mr. Burg to appeal, seek a cer tificate of appeal ability, and mo ve for leave to proceed without prepayment of the filing fee. Mr. Burg’s arg ument on timeliness and the merits are a t least reasonab ly debatable. See Slack v. McDaniel , 529 U.S. 473, 475 (2000) (certifi cate of appealability standa rd); see also United States v. Snyder , 871 F.3d 1122, 1126 (10th Cir. 2017) (timeliness).We thus grant a cer tificate of appea lability and e xcuse prepayment. But we affirm the d enial of Mr. Burg’s motion invok ing § 2255. Mr. Burg asserts that his motion is timely, arguing that the Su preme Court newly recognized a c onstitutional right in Nelson v. Colorado , ___ U.S. ___, 137 S. Ct. 1249 (2017). For the sake of a rgument, we may assume that Mr. Burg is correct on timel iness. Even if he is, however, Mr. Burg’s motion would fail on the merits. Mr. Burg argues on appeal that the sentencing c ourt erred in considering conduct that hadn’t resulted in a conviction. In do ing so, the court applied § 1B1.3 of the United States Sentencing Guideline s, which requires consideration of relevan t conduct. In Mr. Burg’s view, however, the U.S. Constitution forbids consideration at sentencing of co nduct that hadn’t resulted in a conviction.3 The Supreme Court rejected this constitutional challenge in United States v. Watts , 519 U.S. 148 ( 1997). But Mr. Burg contends that Watts was overruled in Nelson v. Colorado , ___ U.S. ___, 137 S. Ct. 1249 (2017). There the Supreme Court addres sed a Colorado la w governing reco upment of court costs for criminal defe ndants who prove their innocenc e. Nelson , 137 S. Ct. at 1257–58. The Court i nvalidated the law under the Fourteenth Amendment’s Due Process Clause. Id. Mr. Burg acknowledges that Nelson didn’t mention Watts , but he insists that Watts was overruled sub silentio . The Supreme Co urt cautions that its “decisions remain bindi ng precedent until [the Supreme Court] sees fit to reconsider them , regardless of whether subsequent cases have raised doubts about their continued vitality.” Hohn v. United States , 524 U.S. 236, 252–53 (1998). Given t his caution, the S upreme Court does not normally overrule prior opinions sub silentio

. Shalala v. Ill. Council on Long Term Care, Inc. , 529 U.S. 1, 18 (2000). In light of the infrequency of this practice, we and every oth er circuit court to consider the issue have stated in nonprecedential opin ions that Nelson did not overrule Watts sub silentio

. See United States v. Johnson , 732 F. App’x 638, 660 n .19 (10th Cir. 2018 ) (unpublished) (decl ining to presume that Nelson overruled Watts ); United States v. Chapman-Sexton , 2018 WL 6653018, at *5 (6 th Cir. Dec. 18, 2018) (unpublished) ( “ Nelson . . . does not sub silentio overrule United States v. Watts .”); United States4 v. Swartz , 2018 WL 6641041, at *2 n.4 (2d Cir. Dec. 18, 2018) (unpublished) (rejecti ng an argument that Nelson overruled Watts ). We share this view, f or the Court in Nelson didn’t consider whether relevant conduct could b e used at sentencing. Th e Court instead addresse d the constitutionality of a statute upping the burden to prove innoc ence in order to recover costs. 137 S. Ct. at 1257–58. Nowhere did the Court address the constitutionality of co nsidering uncharged conduct at sentencin g. Nelson did not mention Watts , much less purport to overrule it. We thus conclude that Nelson did not overrule Watts . And Mr. Burg’s constitutional claim is foreclosed by Watts . We therefore affirm the denial of Mr. Burg’s § 2255 motion. Entered for the Court

Robert E. Bacharach Circuit Judge