United States v. Ellis, 100719 FED10, 17-4097

Docket Nº:17-4097
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL WAYNE ELLIS, Defendant-Appellant.
Judge Panel:Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges. Bacharach, J., dissenting.
Case Date:October 07, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MICHAEL WAYNE ELLIS, Defendant-Appellant.

No. 17-4097

United States Court of Appeals, Tenth Circuit

October 7, 2019

D.C. Nos. 2:16-CV-00484-DAK & 2:01-CR-00411-DAK-1, (D. Utah)

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.

ORDER

PER CURIAM

The issue in this appeal involves the timeliness of Mr. Michael Wayne Ellis's motion to vacate his sentence. The district court dismissed the motion on the ground that the limitations period had expired. Mr. Ellis wants to appeal; to do so, he requests a certificate of appealability and initial consideration en banc. We deny the request for a certificate, dismiss the appeal, and deny the request for initial consideration en banc as moot because absent the grant of a certificate we do not have jurisdiction over the merits of this appeal.

Mr. Ellis committed the offense in 2001; at that time, the United States Sentencing Guidelines were considered mandatory. See, e.g., Burns v. United States, 501 U.S. 129, 133 (1991), abrogated on other grounds,

Dillon v. United States, 560 U.S. 817, 820-21 (2010). These guidelines treated an offense as a crime of violence if the offense created "a serious potential risk of physical injury to another." USSG § 4B1.2(a)(2) (2001).1(This provision is commonly known as the "residual clause.")

The guidelines are now considered advisory rather than mandatory. See United States v. Booker, 543 U.S. 220, 237-39 (2005). After they became advisory, the Supreme Court rejected a vagueness challenge to the guidelines' residual clause. Beckles v. United States, 137 S.Ct. 886, 890, 892, 894-95 (2017). But the Supreme Court has not squarely addressed a vagueness challenge to the guidelines when they were considered mandatory. See id. at 903 n.4 (Sotomayor, J., concurring).

Mr. Ellis contends that given the mandatory nature of the guidelines in 2001, their residual clause should be subject to a vagueness challenge. For this contention, Mr. Ellis likens the guidelines' residual clause to an identical statutory clause in the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)), which was struck down in Johnson v...

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