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United States Court of Appeals, Tenth Circuit.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KHAMPHAY SOUVANNARATH, Defendant - Appellant.

No. 17-6103

Decided: January 19, 2018

Before MATHESON, KELLY, and MURPHY, Circuit Judges.


Khamphay Souvannarath seeks a certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 motion. His appointed counsel moves for leave to withdraw in a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967). We deny Souvannarath's request for a COA, grant counsel's motion to withdraw, and dismiss the appeal.

Souvannarath was convicted of possession with intent to distribute methamphetamine and being a felon in possession of a firearm. The district court determined Souvannarath was a career offender under the United States Sentencing Guidelines and, thus, enhanced his sentence pursuant to USSG § 4B1.1. Souvannarath's sentence was affirmed by this court on direct appeal. United States v. Souvannarath, 158 F. App'x 984, 987 (10th Cir. 2005) (unpublished disposition).

Souvannarath filed the instant § 2255 motion on May 6, 2016. Relying on Johnson v. United States, he argued his advisory guidelines range was unlawfully enhanced through application of the residual clause in USSG § 4B1.2(a). See 135 S. Ct. 2551, 2563 (2015) (holding the imposition of an increased sentence under the residual clause of the Armed Career Criminal Act violates a defendant's due process rights because the clause is unconstitutionally vague). While Souvannarath's § 2255 motion was pending, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886, 892 (2017), holding the Sentencing Guidelines are not subject to vagueness challenges under the Fifth Amendment's due process clause. Based on Beckles, the district court denied Souvannarath's motion.

A federal prisoner may not appeal the denial of habeas relief under § 2255 unless he first obtains a COA. § 2253(c)(1)(B). This court will not issue a COA unless “the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). Under this standard, Souvannarath must show “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

Souvannarath's counsel has submitted an Anders brief. Under Anders, if an attorney concludes after conscientiously examining a case that any appeal would be frivolous, he may so advise the court and request permission to withdraw. 386 U.S. at 744. In conjunction with such a request, counsel must submit a brief highlighting any potentially appealable issues and provide a copy to the defendant. Id. The defendant may then submit a pro se brief. Id. If, upon careful examination of the record, this court determines the appeal is frivolous, it may grant the request to withdraw and dismiss the appeal. Id.

We agree with counsel that any appeal of the district court's order denying habeas relief would be frivolous. A Johnson claim challenging an advisory guidelines sentence 1 imposed under the residual clause of USSG § 4B1.2(a) is squarely foreclosed by Beckles. 137 S. Ct. at 892 (“[T]he 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.”). Neither Souvannarath's pro se brief nor our independent review of the record has uncovered any other potentially meritorious issues.

Accordingly, we deny Souvannarath's request for a COA, grant counsel's motion to withdraw, and dismiss the appeal.



1.   At the time Souvannarath was sentenced, the Sentencing Guidelines were no longer considered mandatory. United States v. Booker, 543 U.S. 220, 245 (2005) (holding the Sentencing Guidelines are advisory only). The district court affirmatively acknowledged the advisory nature of the Guidelines when it sentenced Souvannarath.

Michael R. Murphy Circuit Judge