UNITED STATES v. BURG (2019)

ORDER AND JUDGMENT *

Mr. James P. Burg was convicted on federal charges of mail fraud and willful failure to file a tax return, sentenced to 90 months’ imprisonment, and ordered to pay $ 2,464,099 in restitution. After unsuccessfully appealing his sentence based on substantive reasonableness, Mr. Burg sought to vacate his sentence under 28 U.S.C. § 2255, arguing that the sentencing court had erred in considering conduct not resulting in a conviction. The district court denied the motion as untimely, prompting Mr. Burg to appeal, seek a certificate of appealability, and move for leave to proceed without prepayment of the filing fee. Mr. Burg’s argument on timeliness and the merits are at least reasonably debatable. See Slack v. McDaniel, 529 U.S. 473, 475, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (certificate of appealability standard); see also United States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017) (timeliness).We thus grant a certificate of appealability and excuse prepayment. But we affirm the denial of Mr. Burg’s motion invoking § 2255.

Mr. Burg asserts that his motion is timely, arguing that the Supreme Court newly recognized a constitutional right in Nelson v. Colorado, ––– U.S. ––––, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017). For the sake of argument, we may assume that Mr. Burg is correct on timeliness. Even if he is, however, Mr. Burg’s motion would fail on the merits.

Mr. Burg argues on appeal that the sentencing court erred in considering conduct that hadn’t resulted in a conviction. In doing so, the court applied § 1B1.3 of the United States Sentencing Guidelines, which requires consideration of relevant conduct. In Mr. Burg’s view, however, the U.S. Constitution forbids consideration at sentencing of conduct that hadn’t resulted in a conviction.

The Supreme Court rejected this constitutional challenge in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). But Mr. Burg contends that Watts was overruled in Nelson v. Colorado, ––– U.S. ––––, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017). There the Supreme Court addressed a Colorado law governing recoupment of court costs for criminal defendants who prove their innocence. Nelson, 137 S.Ct. at 1257–58. The Court invalidated the law under the Fourteenth Amendment’s Due Process Clause. Id.

Mr. Burg acknowledges that Nelson didn’t mention Watts, but he insists that Watts was overruled sub silentio. The Supreme Court cautions that its “decisions remain binding precedent until [the Supreme Court] sees fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continued vitality.” Hohn v. United States, 524 U.S. 236, 252–53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998). Given this caution, the Supreme Court does not normally overrule prior opinions sub silentio. Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000).

In light of the infrequency of this practice, we and every other circuit court to consider the issue have stated in nonprecedential opinions that Nelson did not overrule Watts sub silentio. See United States v. Johnson, 732 F. App'x 638, 660 n.19 (10th Cir. 2018) (unpublished) (declining to presume that Nelson overruled Watts); United States v. Chapman-Sexton, 758 Fed.Appx. 437, 442–43, 2018 WL 6653018, at *5 (6th Cir. Dec. 18, 2018) (unpublished) (“Nelson ․ does not sub silentio overrule United States v. Watts.”); United States v. Swartz, 758 Fed.Appx. 108, 112, 2018 WL 6641041, at *2 n.4 (2d Cir. Dec. 18, 2018) (unpublished) (rejecting an argument that Nelson overruled Watts). We share this view, for the Court in Nelson didn’t consider whether relevant conduct could be used at sentencing. The Court instead addressed the constitutionality of a statute upping the burden to prove innocence in order to recover costs. 137 S.Ct. at 1257–58. Nowhere did the Court address the constitutionality of considering uncharged conduct at sentencing.

Nelson did not mention Watts, much less purport to overrule it. We thus conclude that Nelson did not overrule Watts. And Mr. Burg’s constitutional claim is foreclosed by Watts. We therefore affirm the denial of Mr. Burg’s § 2255 motion.

Robert E. Bacharach, Circuit Judge