Havis v. United States, 2:16-cv-00435

Petitioner Jeremiah Havis filed a 28 U.S.C. § 2255 motion challenging a sentence enhancement based on the career-offender definition in USSG § 4B1.2(a) (the Guidelines’ "residual clause").
Havis argued the residual clause is unconstitutionally vague under Johnson v. United States and therefore his enhanced sentence (under USSG § 2K2.1(a)(4)(A)) violated due process.
He also contended the district court erroneously treated the Guidelines as mandatory and that his prior Colorado felony-menacing conviction does not qualify as a "crime of violence."
After Havis filed his § 2255 motion, the Supreme Court decided Beckles v. United States, holding the advisory Guidelines are not subject to vagueness challenges and USSG § 4B1.2(a)’s residual clause is not void for vagueness.
The sentencing transcript shows counsel requested a below-Guidelines deviation; the court considered and rejected it on the merits, stating a Guidelines sentence was appropriate.
Tenth Circuit precedent holds Colorado felony menacing qualifies as a crime of violence under USSG § 4B1.2(a), which was discussed and conceded at sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether USSG § 4B1.2(a)’s residual clause is unconstitutionally vague	Havis: residual clause is void under Johnson and requires resentencing	Govt: Beckles forecloses vagueness challenges to the advisory Guidelines	Denied — Beckles controls; advisory Guidelines not subject to vagueness challenge
Whether the court believed the Guidelines were mandatory	Havis: court acted under belief it had to sentence within the Guidelines	Govt: transcript shows counsel sought deviation; court denied on merits, not because it thought Guidelines mandatory	Denied — record shows court exercised discretion and rejected departure on the merits
Whether Colorado felony menacing is a crime of violence	Havis: under Johnson it no longer qualifies	Govt: Tenth Circuit precedent treats Colorado felony menacing as a violent felony under USSG § 4B1.2(a)	Denied — Tenth Circuit precedent controls; menacing qualifies

Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause void for vagueness)
Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson announced a new substantive rule with retroactive effect on collateral review)
Beckles v. United States, 137 S. Ct. 886 (2017) (held advisory Guidelines not subject to vagueness challenge; USSG § 4B1.2(a) residual clause not void)
United States v. Herron, 432 F.3d 1127 (10th Cir. 2005) (Tenth Circuit precedent on violent-felony analyses)
United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011) (applies categorical approach; treats Colorado felony menacing as crime of violence)