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

                             FOR THE TENTH CIRCUIT                             May 3, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-6156
                                                  (D.C. Nos. 5:16-CV-00690-C and
STEVEN MICAH SHANE,                                     5:13-CR-00061-C-1)
                                                            (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Steven Micah Shane appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate and correct his sentence. We construe his notice of appeal as a

request for a certificate of appealability. See Fed. R. App. P. 22(b)(2). Because

Shane’s claims are foreclosed by clear precedent, we deny a certificate of

appealability.

                                   BACKGROUND

      In May 2013, Shane pleaded guilty to possession with intent to distribute

methamphetamine, see 21 U.S.C. § 841(a)(1), (b)(1)(B) (Count 1), and to being 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         This order is not binding precedent, except under the doctrines of law of the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.
felon in possession of a firearm, see 18 U.S.C. § 922(g)(1) (Count 2). In the

Presentence Investigation Report (PSR), the probation officer recommended that

Shane be sentenced on Count 1 as a career offender under U.S.S.G. § 4B1.1(b)(2),

because the instant offense was a qualifying controlled-substance offense and Shane

had at least two prior crime-of-violence or controlled-substance convictions. On

Count 2, the probation officer recommended that Shane be sentenced under the

Armed Career Criminal Act, see 18 U.S.C. § 924(e), because he had a combination of

at least three prior violent-felony or serious drug offense convictions. The predicate

offenses for the career-offender and ACCA enhancements were: (1) assault and

battery with a dangerous weapon in Oklahoma, (2) assault and battery with a

dangerous weapon with intent to injure in Oklahoma, and (3) assault and battery with

a dangerous weapon in Oklahoma.

      The PSR calculated Shane’s total offense level at 34,1 which combined with

his category VI criminal history, resulted in a guideline range of 262 to 327 months.

The district court granted a three-level reduction for acceptance of responsibility,

resulting in a total offense level of 31 and a guideline range of 188 to 235 months. In

October 2013, the district court sentenced Shane to 200 months’ imprisonment on

Count 1 and 200 months’ imprisonment on Count 2, to run concurrently.

      In June 2016, after the Supreme Court invalidated the residual clause of the

ACCA in Johnson v. United States, 

(2015), Shane filed a motion

      1
       Shane’s total offense level was 34 under both U.S.S.G. § 4B1.1(b)(2) and
U.S.S.G. § 4B1.4.

                                           2
under 28 U.S.C. § 2255 to vacate and correct his sentence. Without the ACCA’s

residual clause, Shane argued that his sentence violated due process because his three

previous convictions for assault and battery with a dangerous weapon did not qualify

as violent felonies under the statute. Further, Shane argued that the Guideline’s

residual clause was void and his previous convictions should not qualify as crimes of

violence under the Guidelines. The district court appointed counsel to represent

Shane on his § 2255 motion. Shane filed a supplement to his § 2255 motion. And the

government filed a response, which included a request to abate proceedings pending

the Supreme Court’s decision in Beckles v. United States, 579 F. App’x 833 (11th

Cir. 2014), cert. granted, 

(U.S. June 27, 2016) (No. 15-8544). The

district court stayed proceedings pending the Supreme Court’s decision.

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

(2017). The Court held that “the advisory Guidelines are not subject to

vagueness challenges under the Due Process Clause.” 

Soon after, the

district court denied Shane’s § 2255 motion, concluding that Beckles precluded

Shane’s challenge to his sentence under the career offender guideline and that his

prior convictions qualified as crimes of violence under the ACCA’s elements clause.2



      2
        The record doesn’t reveal whether the district court originally determined
Shane’s previous convictions qualified as predicate offenses under the ACCA’s
residual clause or instead under the elements clause. But in evaluating Shane’s
§ 2255 petition, the court concluded that the three state felonies qualified as violent
felonies under 18 U.S.C. § 924(e)(2)(B)(i)’s elements clause. United States v. Shane,
No. 5:16-CV-00690-C, slip op. at 2–3 (citing United States v. Mitchell, 653 F. App’x

                                           3
Shane appealed. After Shane filed a notice of appeal, the district court denied a

certificate of appealability, concluding that his claims were foreclosed by clear

precedent.

      On appeal, appointed counsel filed a brief in accordance with Anders v.

California, 

(1967), stating that counsel had found nothing in the record

to support a grant of a certificate of appealability or the relief requested in Shane’s

§ 2255 motion. Counsel simultaneously filed a motion to withdraw on the basis that

he could not identify any non-frivolous issues. After a full examination of the

proceedings, we conclude the case is wholly frivolous and grant counsel’s motion to

withdraw and dismiss the appeal.

                                     DISCUSSION

      A criminal defendant must obtain a certificate of appealability to appeal denial

of relief under § 2255. 28 U.S.C. § 2253(c)(1)(B). “A certificate of appealability may

issue . . . only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “Under the controlling standard, a

petitioner must ‘sho[w] 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.’” Miller-El v. Cockrell, 

, 336 (2003) (alteration in original)

(quoting Slack v. McDaniel, 

, 484 (2000)). Because clear precedent now

639 (10th Cir. 2016) (unpublished) and United States v. Taylor, 

(10th
Cir. 2016)).

                                            4
precludes both Shane’s arguments, reasonable jurists could not debate whether the

issue should have been resolved differently.

      Shane’s argument that the Guideline’s residual clause violates due process is

foreclosed by the Supreme Court’s decision in Beckles v. United States, 

(2017). In Beckles, the Court held that “the advisory Guidelines are not subject to

vagueness challenges under the Due Process Clause.” 

And the residual

clause in § 4B1.2(a)(2) is not void for vagueness. 

The Court reasoned that

the Guidelines were not subject to vagueness challenges because “they merely guide

the exercise of a court’s discretion in choosing an appropriate sentence within the

statutory range.” 

district court sentenced Shane after the Supreme Court

decided United States v. Booker, 

, 245 (2005), which rendered the

Guidelines “effectively advisory.” The Guidelines were applied to Shane in an

advisory manner. So Shane cannot challenge his career-offender status on the

grounds that the Guideline’s residual clause is unconstitutionally vague.

      Shane’s argument that his prior convictions do not qualify as predicate

offenses under the ACCA without the now-void residual clause also fails. Our

precedent establishes that Shane’s convictions are violent felonies under the ACCA’s

elements clause.

      For all three of Shane’s predicate offenses, he was convicted under Okla. Stat.

tit. 21, § 645. At the time of Shane’s first two convictions, in 2003 and 2005, the

statute provided that:



                                           5
      Every person who, with intent to do bodily harm and without justifiable
      or excusable cause, commits any assault, battery, or assault and battery
      upon the person of another with any sharp or dangerous weapon, or
      who, without such cause, shoots at another, with any kind of firearm or
      air gun or other means whatever, with intent to injure any person,
      although without the intent to kill such person or to commit any felony,
      upon conviction is guilty of a felony punishable by imprisonment in the
      penitentiary not exceeding ten (10) years, or by imprisonment in a
      county jail not exceeding one (1) year.

Okla. Stat. tit. 21, § 645 (1999). Shane’s third conviction, in 2009, was under a later

version of the statute that included a “conductive energy weapon” as another example

of a dangerous weapon. Okla. Stat. tit. 21, § 645 (2006).

      In United States v. Taylor, 

(10th Cir. 2016), we addressed

whether Okla. Stat. tit. 21, § 645, the statute Shane was convicted under, satisfied the

elements clause of U.S.S.G. § 4B1.2(a)(1).3 And we concluded that “the use of a

‘dangerous weapon’ during an assault or battery always ‘constitutes a sufficient

threat of force to satisfy the elements clause’ of § 4B1.2(a)(1).” 

(quoting United States v. Mitchell, 653 F. App’x 639, 645 (10th Cir. 2016)). Because

our precedent establishes that Shane’s previous convictions qualify as violent

felonies without the ACCA’s now-void residual clause, his arguments to the contrary

are unavailing.




      3
        Though Taylor addressed whether Okla. Stat. tit. 21, § 645 satisfies the
elements clause of the Guidelines, not the ACCA, “the nearly identical language in
those two provisions allows us to consider precedent involving one in construing the
other.” United States v. McConnell, 

, 828 (10th Cir. 2010).

                                           6
                                  CONCLUSION

      For these reasons, we deny a certificate of appealability, dismiss the appeal,

and grant counsel’s motion to withdraw.




                                           Entered for the Court


                                           Gregory A. Phillips
                                           Circuit Judge




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