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United States v. Buck

United States Court of Appeals, Tenth Circuit

November 21, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SAMUEL JAY BUCK, Defendant-Appellant.

         (D.C. Nos. 1:16-CV-00081-SWS and 2:06-CR-00007-WFD-1) (D. Wyo.)

          Before LUCERO, O'BRIEN, and MORITZ, Circuit Judges.

          ORDER DENYING CERTIFICATE OF APPEALABILITY

          Terrence L. O'Brien, United States Circuit Judge.

         In 2006, Samuel Jay Buck pled guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). His criminal history included three 1991 convictions for first degree arson in violation of Ore. Rev. Stat. § 164.325. Without objection, the district judge concluded these convictions were "violent felon[ies]" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), and sentenced him to 15 years imprisonment, the mandatory minimum sentence required by the ACCA.[1] See 18 U.S.C. § 924(e)(1). At the time of sentencing, the ACCA defined "violent felony" as "any crime 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" (the elements clause); (2) "is burglary, arson, or extortion, [or] involves use of explosives" (the enumerated-offense clause); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). Id. § 924(e)(2)(B). Buck did not file a direct appeal.

         On June 26, 2015, the United States Supreme Court decided Johnson v. United States, --- U.S. ---, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court decided the residual clause of the ACCA is unconstitutionally vague. Id. at 2557, 2563. It left untouched the remainder of the ACCA's definition of "violent felony" including the enumerated-offense clause. Id. at 2563. On April 18, 2016, it made Johnson's holding retroactive to cases on collateral review. Welch v. United States, --- U.S. ---, 136 S.Ct. 1257, 1265 (2016).

         Relying on Johnson, Buck filed a 28 U.S.C. § 2255 motion (his first) on April 21, 2016. He argued that after Johnson, his arson convictions could only qualify as violent felonies under the ACCA if they satisfied either the elements clause or the enumerated-offense clause; they met neither. Relevant here, he claimed they did not constitute violent felonies under the enumerated-offense clause because Oregon's arson statute is broader than generic arson. Had he not received the ACCA enhancement, he says, the guideline range would have been 24-30 months.

         The district judge concluded Buck's arson convictions were considered violent felonies under the ACCA's enumerated-offense clause, not the residual clause invalidated by Johnson. Because Johnson was inapplicable, Buck's § 2255 motion was untimely as it was not filed within one year of his judgment of conviction becoming final. See 28 U.S.C. § 2255(f)(1). The judge also rejected Buck's claim that his prior arson convictions could only have been considered violent felonies under the ACCA's residual clause (rather than the enumerated-offense clause) because the Oregon arson statute is broader than the requirements for generic arson. He decided Oregon's arson statute falls within and is not broader than generic arson.

         Buck did not request a certificate of appealability (COA) from the district court and the judge did not address a COA. But, as Buck acknowledges, a COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA "only if the applicant has made 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 (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted).

         Buck says his § 2255 motion is timely because it was filed within one-year of Johnson. He relies on 28 U.S.C. § 2255(f)(3), which allows a § 2255 motion to be filed within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."

         "[T]o be timely under § 2255(f)(3), a § 2255 motion need only 'invoke' the newly recognized right, regardless of whether or not the facts of record ultimately support the movant's claim." United States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017). Buck's § 2255 motion "invoked" Johnson by alleging his ACCA sentence is no longer valid after Johnson. Id. Because he filed his § 2255 motion within one year of Johnson, it is timely under § 2255(f)(3). However, "[w]hether or not [he] can ultimately prevail on his motion, " is another matter, to which we now turn. Id.

         Buck claims his sentence was the result of the judge concluding his previous arson convictions constituted violent felonies under the unconstitutional residual clause. The judge found otherwise:

Mr. Buck . . . was not sentenced pursuant to the ACCA's residual clause. The ACCA's definition of "violent felony" also includes certain enumerated offenses-burglary, arson, extortion, or any crime involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii). It is clear from the record of Defendant's criminal proceedings that his three first degree arson convictions were the predicate violent felony crimes used for the sentence enhancement under § 924(e)(1). The record makes absolutely no mention of the residual clause, nor does the record contain any discussion or analysis to suggest the sentencing court ever even considered whether Defendant's prior convictions would fall under the residual clause.

(R. Vol. 1 at 64.)

         Buck claims the judge erred in deciding he was not sentenced pursuant to the residual clause. According to him, it is impossible to tell from the record whether his prior arson convictions fell under the elements clause, the enumerated-offense clause, or the residual clause. Because the residual clause potentially influenced his sentence and ...


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