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

                             FOR THE TENTH CIRCUIT                         March 16, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-3131
                                                (D.C. Nos. 6:16-CV-01304-JTM) &
DEXTER DEWAYNE BAKER,                                 6:12-CR-10076-JTM-1
                                                             (D. Kan.)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MORITZ, McKAY, and KELLY, Circuit Judges.
                  _________________________________

      Dexter Baker, a federal prisoner proceeding pro se, appeals the district court’s

order denying his second or successive 28 U.S.C. § 2255 motion to vacate, set aside,

or correct his sentence. Baker argued that he was sentenced as a career offender

under the residual clause of United States Sentencing Guidelines Manual (USSG)

§ 4B1.2(a)(2) (U.S. Sentencing Comm’n 2011), based in part on a Kansas conviction

for aggravated battery. He asserted a claim for relief based on Johnson v. United

States, 

, 2557, 2563 (2015) (holding that the residual clause of the

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Armed Career Criminal Act’s (ACCA) definition of “violent felony” is

unconstitutionally vague). On June 28, 2016, this court granted Baker authorization

to file a second or successive § 2255 motion to challenge his sentence under Johnson.

      On March 6, 2017, the Supreme Court decided Beckles v. United States,

(2017). There, the Court distinguished its holding in Johnson,

explaining: “Unlike the ACCA, . . . the advisory Guidelines do not fix the

permissible range of sentences. To the contrary, they merely guide the exercise of a

court’s discretion in choosing an appropriate sentence within the statutory range.”

Thus, the Court held that “the Guidelines are not subject to a vagueness

challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2)

therefore is not void for vagueness.” 

court then denied Baker’s second or successive § 2255 motion,

holding that Beckles didn’t provide a retroactive basis for Baker to challenge his

sentence. Baker filed a motion to reconsider arguing that the court should have

addressed his challenges to his underlying convictions. The district court treated the

motion as filed under Fed. R. Civ. P. 60(b) and denied it because it revisited matters

already addressed and dismissed. The court granted a certificate of appealability.

      On appeal, Baker concedes that the district court correctly held that a Johnson

claim challenging an advisory guidelines sentence imposed under the residual clause

of USSG § 4B1.2(a) is foreclosed by Beckles. Nevertheless, he contends that his

underlying aggravated-battery and drug convictions couldn’t be used to enhance his

sentence under USSG § 4B1.1(a) as either a crime of violence or a controlled

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substance offense. Thus, he insists that the district court should have granted his

Rule 60(b) motion.

      But Baker’s motion to reconsider asserted a federal basis for relief from his

sentence, so it should have been treated as a second or successive § 2255 motion.

See Peach v. United States, 

, 1271 (10th Cir. 2006) (per curiam)

(stating that a Rule 60(b) motion should be treated as a second or successive

application “where the motion could be said to bring a claim, i.e., to assert a federal

basis for relief from the underlying conviction or sentence”). Consequently, the

district court didn’t have jurisdiction to consider the merits of the motion to

reconsider. See United States v. Springer, 

, 972 (10th Cir. 2017)

(holding district court doesn’t have jurisdiction even to deny relief for an

unauthorized second or successive motion).

      We vacate the order denying the motion to reconsider and remand with

instructions to dismiss it as a second or successive § 2255 motion. We affirm the

denial of the § 2255 motion.




                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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