FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           May 2, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-6323
                                                 (D.C. Nos. 5:16-CV-00446-F and
JOSHUA ANTONIO McCLENDON,                              5:13-CR-00117-F-1)
                                                          (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Joshua McClendon seeks a certificate of appealability (“COA”) to appeal the

district court’s dismissal of his 28 U.S.C. § 2255 motion. We deny a COA and

dismiss the appeal.

      McClendon pled guilty to bank robbery in federal court pursuant to a plea

agreement. Under that agreement, McClendon waived his right to “collaterally

challenge . . . his sentence as imposed by the Court and the manner in which the

sentence is determined, provided the sentence is within or below the advisory

guideline range determined by the Court to apply in this case.” McClendon’s

presentence investigation report (“PSR”) recommended that he be sentenced as a

      *
         This order is not binding precedent, except under the doctrines of law of the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.
career offender under U.S.S.G. § 4B1.2 and proposed a Guidelines range of 188 to

235 months. The district court adopted the PSR and imposed a sentence of 192

months.

      McClendon filed a § 2255 motion arguing that he was entitled to relief

pursuant to Johnson v. United States, 

(2015). The government

moved to enforce the plea agreement’s collateral attack waiver. After ordering

McClendon to respond, the district court granted the motion to enforce, dismissed

McClendon’s § 2255 motion, and denied a COA. McClendon now seeks a COA

from this court.

      A prisoner may not appeal the denial of habeas relief under § 2255 without a

COA. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2).

If a district court dismisses a § 2255 motion on procedural grounds, a prisoner can

meet this standard only by showing “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right, and

that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 

, 484 (2000); see also United

States v. Snider, 504 F. App’x 674, 677 (10th Cir. 2012) (unpublished) (enforcement

of a collateral attack waiver constitutes a procedural ruling).

      We do not need to consider whether the district court’s procedural ruling is

debatable because McClendon’s substantive claim necessarily fails. In Beckles v.

United States, 

(2017), the Supreme Court held that Johnson does not

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apply to sentences imposed under U.S.S.G. § 4B1.2 because the Guidelines are not

subject to vagueness challenges. 

. Accordingly,

McClendon cannot prevail on the sole claim he asserted in his § 2255 motion.

      We DENY a COA and DISMISS the appeal. McClendon’s motion to proceed

in forma pauperis is GRANTED.


                                          Entered for the Court


                                          Carlos F. Lucero
                                          Circuit Judge




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