United States v. Hahn

Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS August 7, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 24-2069 MARCUS HAHN, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 1:21-CV-00455-WJ-JFR & 1:00-CR-01344-WJ-JFR-1) _________________________________ Mark T. Baker, Peifer, Hanson, Mullins & Baker, P.A., Albuquerque, New Mexico, for Defendant-Appellant. Marcus Hahn, filed an opening brief, pro se. Tiffany L. Walters, Assistant U.S. Attorney (Todd Blanche, Acting Attorney General, and Ryan Ellison, First Assistant U.S. Attorney, with her on the briefs), District of New Mexico, Albuquerque, New Mexico, for Plaintiff-Appellee. _________________________________ Before HOLMES, Chief Judge, TYMKOVICH, and MORITZ, Circuit Judges. _________________________________ TYMKOVICH, Circuit Judge. _________________________________ Marcus Hahn pleaded guilty in 2001 to multiple counts of sexual exploitation of minors and distribution of controlled substances with intent to commit a crime of  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 2 violence. In exchange for his plea, the government dismissed nine related charges. At the time, it was understood that a crime of violence under the operative statute, 18 U.S.C. § 16(b), included conduct covered by Hahn’s plea. But after the Supreme Court held in Sessions v. Dimaya, 584 U.S. 148 (2018), that 18 U.S.C. § 16(b)’s definition of a crime of violence was unconstitutionally vague, Hahn filed a § 2255 habeas motion to challenge his controlled-substances convictions. The district court dismissed Hahn’s motion as untimely and rejected on the merits his vagueness claim. Exercising jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2255(d), we AFFIRM. Because Hahn’s motion falls outside § 2255(f)’s one-year statute of limitations, it is untimely. And he is not eligible for the miscarriage-of-justice exception to the limitations period because he cannot show he was actually innocent of the equally serious charges the government dismissed as part of the plea deal. The district court thus correctly dismissed Hahn’s habeas motion. I. Background Federal law enforcement began investigating Marcus Hahn on an indictment for multiple drug and firearm charges in 1999. During a search of his home, officers uncovered evidence that Hahn had sexually abused minors. In a separate indictment, a grand jury charged him on sixteen counts: Counts 1–6 for sexual exploitation of minors; Counts 7–9 for interstate transportation of child pornography; Counts 10–11 for possession of child pornography; and Counts 12–16 for distribution of a controlled substance without the recipient’s knowledge and with intent to commit a crime of violence. The controlled-substance charges were brought under 21 U.S.C. 2  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 3 § 841(b)(7), which incorporates the definition of a crime of violence in 18 U.S.C. § 16, and identified the underlying crime of violence as criminal sexual contact of a minor under New Mexico Stat. § 30-9-13. Hahn pleaded guilty to Counts 3–6 for sexual exploitation of a minor. He also pleaded guilty to Counts 15–16 and no contest to Count 14. The district court sentenced Hahn to 292 months’ incarceration, consecutive to his separate sentence for the drug and firearm offenses. Hahn appealed, but we dismissed based on an appellate waiver in his plea agreement. United States v. Hahn, 359 F.3d 1315, 1329– 30 (10th Cir. 2004) (en banc). Hahn filed a § 2255 habeas motion soon after, which the district court denied. Hahn appealed, and we affirmed. United States v. Hahn, 261 F. App’x 90, 92 (10th Cir. 2008). In 2021, Hahn requested permission to file a second-or-successive § 2255 motion challenging his § 841 convictions based on the due process holding announced by the Supreme Court in Sessions v. Dimaya, 584 U.S. 148 (2018). Dimaya held that the residual clause in 18 U.S.C. § 16(b)—defining a “crime of violence” as an offense that “by its nature, involves a substantial risk that physical force . . . may be used in the course of committing the offense”—was unconstitutionally vague. 584 U.S. at 153, 174–75. The Court left undisturbed the elements clause in § 16(a)—defining a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force.” Id. at 153. Hahn argues that the sentencing court relied on § 16’s residual clause to categorize criminal sexual contact of a minor under N.M. Stat. § 30-9-13 as a crime of violence. 3  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 4 And since his § 841 convictions depend on that constitutionally infirm categorization, he claims they are no longer valid. Hahn also contends that Dimaya’s rule applies retroactively to cases on collateral review because the Supreme Court has recognized retroactivity in cases involving the invalidation of similar residual clauses. See Welch v. United States, 578 U.S. 120, 130 (2016) (holding the Court’s decision in Johnson v. United States, 576 U.S. 591 (2015), was retroactive because it “altered ‘the range of conduct or the class of persons that the law punishes’” by determining the residual clause in 18 U.S.C. § 924(e)(2)(B) was void for vagueness). Since the government agreed that Dimaya announced a new retroactive rule, we permitted Hahn to file a second-or-successive § 2255 motion raising his Dimaya claim. He then filed a pro se motion in the district court challenging his convictions on Counts 14–16 as unconstitutional. A magistrate judge recommended the district court deny the motion. Hahn objected to the magistrate’s findings on several issues but did not object to its legal conclusions that: (1) the “§ 2255 motion was not timely filed” in accordance with the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996; (2) Hahn was not entitled to equitable tolling of his untimely motion; and (3) Hahn had “procedurally defaulted his Dimaya-based claim” by not raising it previously. R., Vol. I at 243. The district court accepted Hahn’s concession that his motion was untimely but pressed ahead. It then determined Hahn had established cause for his procedural default because the Supreme Court had not decided Dimaya when he brought his direct appeal and first § 2255 motion. And it found Hahn would suffer actual 4  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 5 prejudice if it enforced the procedural bar without considering his Dimaya claim’s merits. So it excused the procedural default. Turning to the merits, the district court held Hahn was not entitled to relief because his 2001 sentencing court “would have more likely than not found § 30-9-13 a crime of violence under § 16’s elements clause” rather than the residual clause. R., Vol. I at 251. To reach that conclusion, the district court surveyed the relevant legal background and found that United States v. Vigil, 334 F.3d 1215 (10th Cir. 2003), and United States v. Pierce, 278 F.3d 282 (4th Cir. 2002), established the 2001 court could have categorized § 30-9-13 under § 16’s elements clause. Despite having already excused Hahn’s procedural default based on a showing of cause and prejudice, the district court addressed his alternative theory that his default was excusable by a showing of actual innocence. The district court rejected that argument, finding Hahn could not demonstrate actual innocence of his § 841 charges because his claim was based on a change in the law, rather than newly discovered facts. It then explained that “for the actual innocence gateway to afford relief, [Hahn] would have to show that he is actually innocent of charges equal or more serious to those that the government dismissed as part of the plea agreement.” R., Vol. I at 255 (citing Bousley v. United States, 523 U.S. 614, 624 (1998)). And it rejected Hahn’s argument that his § 841 convictions were more serious than the dismissed sexual-exploitation charges. In doing so, the court explained § 841 carried a statutory maximum sentence of twenty years’ imprisonment with no mandatory minimum, while the sexual-exploitation charges carried up to twenty years’ 5  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 6 imprisonment and a mandatory minimum of ten years’ imprisonment. It therefore held that the sexual-exploitation charges were more serious than the § 841 convictions and Hahn’s failure to argue that he was actually innocent of them doomed his claim to a procedural exception based on actual innocence. The court entered judgment dismissing Hahn’s § 2255 motion with prejudice and denying a COA. Hahn moved to alter or amend the judgment, and the court denied the motion. He then filed an application for a COA with this court. We granted his request, finding reasonable jurists could debate three questions: (1) whether the invalidation of an offense under a new constitutional rule constitutes a showing of actual innocence regarding that offense; (2) whether, to qualify for the miscarriage-of-justice exception to AEDPA’s statute of limitations, Hahn must show actual innocence of equally serious charges the government dismissed in exchange for his plea, and (3) regarding the merits, whether the sentencing court just as likely relied on § 16’s elements clause as its residual clause to categorize criminal sexual contact of a minor under § 30-9-13 as a crime of violence. II. Discussion Hahn argues the district court erred in dismissing his § 2255 motion for failing to rely on a true Dimaya claim and for falling outside AEDPA’s one-year limitations period. First, he says the district court incorrectly determined that the sentencing court could have classified New Mexico’s criminal-sexual-contact-of-a-minor statute as a crime of violence based on § 16’s elements clause. He contends that a review of our caselaw at the time of his sentencing shows that the sentencing court must have 6  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 7 relied on § 16’s now-invalid residual clause to make that classification. And, as a result, his § 841 convictions relying on that classification must be vacated. Second, he argues that, though his motion is untimely, he is entitled to the miscarriage-of-justice exception to AEDPA’s statute of limitations. He claims the district court’s refusal to apply the exception hinged on multiple errors involving: (1) the standard for actual innocence as applied to a statute that is later declared void- for-vagueness, (2) the court’s assessment of the relative seriousness of his convictions and the dismissed charges, and (3) the requirements for plea bargainers set out in Bousley v. United States. We “review the district court’s legal rulings on a § 2255 motion de novo and its findings of fact for clear error.” United States v. Miller, 868 F.3d 1182, 1186 (10th Cir. 2017) (quoting United States v. Pearce, 146 F.3d 771, 774 (10th Cir. 1998)). “When, as here, ‘the district court does not hold an evidentiary hearing, but rather denies the motion as a matter of law upon an uncontested trial record, our review is strictly de novo.” United States v. Bowen, 936 F.3d 1091, 1097 (10th Cir. 2019) (quoting United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015)). A. Section 2255(h) Gatekeeping Requirements Before we reach Hahn’s arguments, we must address a threshold jurisdictional issue. Because this is not Hahn’s first § 2255 motion, he must satisfy AEDPA’s requirements for second-or-successive motions. 28 U.S.C. § 2255(h). Thus, Hahn’s motion must pass through two jurisdictional gates before a court can consider its merits: 7  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 8 (1) a prima facie showing to the court of appeals that the motion satisfies the requirements of § 2255(h), defined as a sufficient showing of possible merit to warrant a fuller exploration by the district court, and (2) a determination by the district court that the motion does, in fact, satisfy those requirements. United States v. Murphy, 887 F.3d 1064, 1068 (10th Cir. 2018) (citation modified). Relevant here, § 2255(h)(2) requires that Hahn’s claim rely on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 1 Hahn traversed the first gate when we authorized his motion based on the government’s agreement with the § 2255(h)(2) argument in his request. The district court noted our authorization order but did not address whether Hahn’s motion does, in fact, meet § 2255’s demands. To ensure that the district court had subject matter jurisdiction, we requested supplemental briefing on the issue. We now consider each § 2255 factor and determine that Hahn’s motion satisfies the gatekeeping requirements. 1. New Rule of Constitutional Law Hahn has shown that Dimaya announced a new rule of constitutional law. “A rule is new unless it was ‘dictated by precedent existing at the time the defendant’s conviction became final.’” Edwards v. Vannoy, 593 U.S. 255, 265 (2021) (quoting 1 Unlike its companion statute governing habeas petitions challenging state court convictions, § 2244(b)(2)(A), § 2255(h)(2) uses the word “contain” instead of the phrase “relies on.” But we have explained that “[a] motion ‘contains’ a new rule of constitutional law, as required by § 2255(h)(2), if the claim for which authorization is sought ‘relies on’ the new rule.” Murphy, 887 F.3d at 1067 (quoting In re Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016)). 8  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 9 Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion)). “In other words, a rule is new unless, at the time the conviction became final, the rule was already ‘apparent to all reasonable jurists.’” Id. (quoting Lambrix v. Singletary, 520 U.S. 518, 528 (1997)). We conclude that Dimaya was not dictated by precedent when Hahn’s conviction became final in 2004. The only case predating Dimaya that might have dictated its outcome is Johnson v. United States, 576 U.S. 591 (2015). Indeed, the Court described Dimaya as a “straightforward application” of Johnson. Dimaya, 584 U.S. at 157. But as the Fifth Circuit has noted, the Supreme Court decided Dimaya over a four-justice dissent, indicating that Dimaya’s rule “was open to reasonable debate and not ‘dictated by’ Johnson.” United States v. Vargas-Soto, 35 F.4th 979, 988 (5th Cir. 2022). As a result, we have no trouble determining that Dimaya announced a new rule of constitutional law. 2. Made Retroactive by the Supreme Court Hahn also must show that the Supreme Court has made Dimaya’s rule retroactive on collateral review. This issue is closer because the Supreme Court has never stated explicitly that Dimaya applies on collateral review, but our precedent dictates that result. “[A] new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S. 656, 663 (2001). The holding can either come in a single case, or through a combination of holdings that “necessarily dictate retroactivity of the new rule.” In re Mullins, 942 F.3d 975, 9  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 10 977 (10th Cir. 2019) (quoting Tyler, 533 U.S. at 666). While the Court has never explicitly held that Dimaya is retroactive on collateral review, Hahn argues that the conclusion is compelled by the combined holdings of Johnson, Welch v. United States, 578 U.S. 120 (2016), and Dimaya. The government agrees. 2 Johnson held that the residual clause in the Armed Career Criminal Act’s (ACCA) definition of “violent felony” was unconstitutionally vague. 576 U.S. at 606. A year later, Welch held that Johnson stated a new rule that applied retroactively because it narrowed the substantive reach of the ACCA. Welch, 578 U.S. at 130. Two years after the Court decided Welch, Dimaya applied Johnson’s rule to hold that the term “crime of violence” in 18 U.S.C. § 16(b) was unconstitutionally vague, thereby changing the substantive reach of that statute. According to Hahn and the government, since Dimaya limited the reach of § 16 in the same manner that Johnson limited the ACCA, Welch made Dimaya retroactive even though it was decided before Dimaya. Our court applied an almost identical analysis in 2019 to hold that the Supreme Court had made the rule of United States v. Davis, 588 U.S. 445 (2019), retroactive 2 Since we have described AEDPA’s gatekeeping requirements as jurisdictional, we must decide the issue despite the government’s concession. See Case v. Hatch, 731 F.3d 1015, 1027 (10th Cir. 2013) (“Section 2244’s gate-keeping requirements are jurisdictional in nature, and must be considered prior to the merits of a § 2254 petition.”); Murphy, 887 F.3d at 1067–68 (extending Case’s gatekeeping requirements to § 2255 motions); see also United States v. Harrison, 785 F. App’x 534, 536 (10th Cir. 2019) (unpublished) (“Importantly, the gatekeeping requirements of section 2255 for bringing a second or successive habeas motion are jurisdictional.” (citing Case, 731 F.3d at 1027)). 10  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 11 on collateral review. Davis held that the residual clause in 18 U.S.C. § 924(c)(3)’s definition of a “crime of violence” was unconstitutionally vague. 588 U.S. at 470. And in In re Mullins, we applied Tyler’s multiple-cases approach to explain that the Court had made Davis retroactive through a combination of its holdings in Davis and Welch. We determined that “[b]ecause Davis has the same limiting effect on the range of conduct or class of people punishable under § 924(c) that Johnson has with respect to the ACCA, Welch dictates that Davis—like Johnson—‘announced a substantive rule that has retroactive effect in cases on collateral review.’” In re Mullins, 942 F.3d at 979 (quoting Welch, 578 U.S. at 135). Thus, “[t]he Court’s holdings in Welch and Davis ‘logically permit no other conclusion than that the rule [in Davis] is retroactive.” Id. (second alteration in original) (quoting Tyler, 533 U.S. at 669 (O’Connor, J., concurring)). Whether our application of Tyler in In re Mullins was correct is debatable. After all, the Tyler majority said that multiple cases can make a rule retroactive only if they “necessarily dictate” that outcome. 533 U.S. at 666. With such sparse guidance, we relied on Justice O’Connor’s solo concurrence to flesh out the reasoning that ultimately led us to conclude that Davis had been made retroactive. See In re Mullins, 942 F.3d at 977–78. We do not typically give such strong weight to concurrences, and whether Justice O’Connor’s approach is the correct way to interpret the Tyler majority’s statement about multiple cases is unclear. And there is some reason to doubt our determination that the interplay between Welch and Davis 11  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 12 satisfies the retroactivity standard. See Davis, 588 U.S. at 501 (Kavanaugh, J., dissenting) (“[W]ho knows whether the ruling will be retroactive?”). Even so, our precedent commands a similar outcome here. In re Mullins adopted the Tyler concurrence’s approach as our circuit’s law. Just as Johnson limited the reach of the ACCA and Davis constrained that of § 924(c)(3), Dimaya curbed the scope of § 16. We have said that the Supreme Court has made rules of this type retroactive through its decision in Welch. See In re Mullins, 942 F.3d at 979. And we see no principled distinction between Davis and Dimaya on retroactivity. Cf. Vargas-Soto, 35 F.4th at 989 (“For retroactivity under § 2255(h)(2), there is no principled distinction between Dimaya and Davis.” (citation modified)). We therefore conclude that the Supreme Court has made Dimaya retroactive to cases on collateral review. 3. Previously Unavailable Hahn also must demonstrate that Dimaya’s rule was previously unavailable to him. Our court has not identified the proper temporal reference for determining whether a new rule was previously unavailable. Several circuits have stated that courts should look to the time frame of the defendant’s previous § 2255 motion or habeas petition. See, e.g., In re Hill, 113 F.3d 181, 182–83 (11th Cir. 1997). But others have held that “previously” refers to the last “federal proceeding—including an authorization motion—challenging [the defendant’s] conviction.” In re Thomas, 988 F.3d 783, 790 (4th Cir. 2021) (citing In re Williams, 364 F.3d 235, 239 (4th Cir. 2004)). 12  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 13 We need not decide the issue today because Hahn’s motion satisfies either standard. Before he filed his current motion, Hahn’s most recent proceeding in this case was our 2015 dismissal of his appeal of an order regarding an earlier § 2255 motion. Since Dimaya was decided in 2018, its rule was unavailable to Hahn during that most recent proceeding. 4. Reliance on the Rule Finally, Hahn must show that his motion relies on Dimaya’s new rule. Our residual-clause cases establish that a motion relies on a new rule only if the sentencing court’s determination “rest[ed] on the residual clause.” 3 Murphy, 887 F.3d at 1069; see also United States v. Cooper, 159 F.4th 768, 772 (10th Cir. 2025). To convict Hahn based on his guilty plea to the § 841 charges, the sentencing court determined that the requisite underlying crime of violence was criminal-sexual- contact-of-a-minor under New Mexico law, N.M. Stat. Ann. § 30-9-13 (West 1998). So to prove that his motion relies on Dimaya, Hahn must demonstrate it is more likely than not that the sentencing court classified the New Mexico criminal-sexual- contact-of-a-minor statute as a crime of violence under § 16’s residual clause rather than its elements clause. See United States v. Washington, 890 F.3d 891, 896 (10th 3 This strict rule of reliance smuggles the merits of residual-clause claims into the gatekeeping analysis. By determining that a favorable Supreme Court ruling invoked by the defendant in fact controls his case, a court practically determines the merits as well. For example, in deciding that the sentencing court relied on § 16(b)’s residual clause, we settle a substantial portion of Hahn’s Dimaya claim. The only issue left behind on the merits is an inquiry into whether the Dimaya error was harmless. See United States v. Lewis, 904 F.3d 867, 873 (10th Cir. 2018) (articulating the harmless error standard in the event of an established Johnson error). 13  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 14 Cir. 2018) (applying this standard to an analogous Johnson claim). The district court concluded that Hahn could not do so because, considering the relevant background legal environment at the time of sentencing, the sentencing court “would have more likely than not found § 30-9-13 a crime of violence under § 16’s elements clause.” R., Vol. I at 251. We disagree. Hahn may meet his burden to show the district court relied on the residual clause in two ways. First, he may point to evidence in the sentencing record that shows the sentencing court relied on the residual clause. United States v. Copeland, 921 F.3d 1233, 1242 (10th Cir. 2019). But Hahn and the government agree that the record affords no clarity. Hahn’s second pathway is to show that based on “the ‘relevant background legal environment’ at the time of [his] sentencing . . . the district court would have needed to rely on the residual clause.” Id. (quoting United States v. Driscoll, 892 F.3d 1127, 1132 (10th Cir. 2018)). “[T]he relevant background legal environment is, so to speak, a ‘snapshot’ of what the controlling law was at the time of sentencing and does not take into account post-sentencing decisions that may have clarified or corrected pre-sentencing decisions.” Id. at 1243 (alteration in original) (quoting United States v. Snyder, 871 F.3d 1122, 1129 (10th Cir. 2017)). It includes “case law (1) holding that particular offenses qualify as violent felonies under specific [statutory] clauses and (2) instructing how to determine whether an offense qualifies.” Id. (citing Snyder, 871 F.3d at 1129–30). 14  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 15 Hahn and the government agree that the sentencing court would have employed the categorical approach to evaluate § 30-9-13’s relationship to § 16. Under that approach, “the facts of a given case are irrelevant.” Borden v. United States, 593 U.S. 420, 424 (2021). “The focus is instead on whether the elements of the statute of conviction meet the federal standard.” Id. Under § 16’s elements clause, a crime of violence involves the “use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). “If any—even the least culpable—of the acts criminalized do not entail that kind of force, the statute of conviction does not categorically match the federal standard[.]” Borden, 593 U.S. at 424. Hahn argues the version of § 30-9-13 in effect at the time of his convictions does not categorically qualify under § 16’s elements clause because it criminalizes, among other things, “the unlawful and intentional touching of or applying force to the intimate parts of a minor . . . .” N.M. Stat. Ann. § 30-9-13(A)(1) (West 1998) (emphasis added). He says § 30-9-13’s “or” creates a distinction between “touching” and “force,” and since § 16(a) requires “force,” § 30-9-13 is not a categorical fit. We agree. A contrary reading that equates touching and force would make one of the terms surplusage. So the sentencing court, mindful of the requirement that courts give meaning and effect to each term in a statute, Regents of Univ. of N.M. v. N.M. Fed’n of Tchrs., 962 P.2d 1236, 1246 (N.M. 1998), must have recognized that “touching” is different from, and falls short of, “force.” The sentencing court 15  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 16 therefore could not have classified § 30-9-13 categorically as a crime of violence under § 16’s elements clause. Our conclusion is supported by our caselaw at the time of Hahn’s sentencing. While none of our cases had addressed § 30-9-13 directly, in the years predating Hahn’s conviction our court had classified analogous statutes as crimes of violence under § 16’s residual clause. In 1993, we addressed a Utah statute that criminalized “touch[ing] the [intimate parts] of any child . . . or otherwise tak[ing] indecent liberties with a child, or caus[ing] a child to take indecent liberties with the actor or another . . . .” Utah Code Ann. § 76-5-404.1(1) (1990). Despite the statute’s use of “touches,” we determined the offense “d[id] not involve physical force as an element of the crime.” United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993). Instead, we classified the offense as a crime of violence under § 16’s residual clause because, under Utah law, children under fourteen could not consent, and when a crime “involves a non-consensual act upon another person, there is a substantial risk that physical force may be used in the course of committing the offense.” Id. Thus, in Reyes-Castro, we declined to classify an analogous criminal-sexual-contact-of-a- minor statute as a crime of violence under § 16(a) and placed it within the ambit of § 16(b). In 1998, we cited Reyes-Castro as persuasive authority to hold that the definition of a crime of violence in § 4B1.2 of the Sentencing Guidelines covered sexual offenses involving a minor. United States v. Coronado-Cervantes, 154 F.3d 1242, 1244 (10th Cir. 1998). At the time, § 4B1.2 included a residual clause defining 16  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 17 a crime of violence as an act which “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S. Sent’g Guidelines Manual § 4B1.2(a)(2) (U.S. Sent’g Comm’n 1997). It also contained an elements clause that mirrored the definition in § 16(a). The government argued § 4B1.2’s definition applied to the defendant’s prior acts based on his having “intentionally touched” a minor victim’s intimate parts. Coronado-Cervantes, 154 F.3d at 1243. The district court determined that the offense fell under § 4B1.2 even though “there was nothing in the elements of the offense, in the plea agreement, or in the information that alluded to the use of force.” Id. To do so, it relied on the residual clause. We affirmed. Despite some differences in language between § 16(b) and § 4B1.2’s residual clause, we found the texts similar enough that the reasoning of Reyes-Castro applied. So we held that a criminal-sexual-abuse offense based on “intentional[] touch[ing]” fit within § 4B.2’s residual clause. Finally, in June 2000, we rejected a double-counting challenge to a defendant’s sentence for sexual abuse of a minor. United States v. Reyes Pena, 216 F.3d 1204, 1211 (10th Cir. 2000). The defendant argued his sentence was twice enhanced for the same use of force under U.S.S.G. § 2A3.1(b)(2)(A) (crimes involving a victim under 12) and U.S.S.G. § 2A3.1(b)(1) (violent crimes generally). He claimed “the element of force is implicit in any offense involving a child under the age of twelve years,” so he could not receive an enhancement under both sections. Reyes Pena, 216 F.3d at 1210. We rejected that argument and explained that “both Reyes-Castro and Coronado-Cervantes explicitly recognize that it is the 17  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 18 serious risk of physical force, not the actual presence of such force that determines whether or not a certain act constitutes a ‘crime of violence.’” Id. In doing so, we clarified that child sex crimes generally fell under crime-of-violence residual clauses, like § 16(b). See id. at 1211 (“The force enhancement is not mandatory [in a case involving sexual abuse of a child]—not because it is already contemplated by enhancements for the youth of the victim—but rather because unlike adult rape, it may not always be appropriate given the factual predicates of the crime.”). The government counters that in United States v. Vigil, 334 F.3d 1215 (10th Cir. 2003), our court classified Colorado’s aggravated-incest statute as a crime of violence under U.S.S.G. § 4B1.2’s elements clause. So, it says, Hahn’s sentencing court could likewise have classified § 30-9-13 as a crime of violence under § 16’s elements clause. That theory is flawed because Vigil was decided two years after Hahn’s sentencing and therefore did not constitute a part of the sentencing court’s relevant legal background. See Snyder, 871 F.3d at 1129 (“[T]he relevant background legal environment . . . does not take into account post-sentencing decisions that may have clarified or corrected pre-sentencing decisions.”). The government tries to get around that obstacle by suggesting that, even if Vigil were not a part of the legal background, the district court’s reliance on an element’s clause in that case shows that Hahn’s sentencing court could similarly have classified § 30-9-13 under § 16’s elements clause. That is a clever attempt to bring Vigil back into consideration, but it still fails. For one, Vigil “base[d] [its] holding primarily on the ‘serious threat of physical injury’ analysis under the [residual 18  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 19 clause] of section 4B1.2.” 334 F.3d at 1219. Further, the aggravated-incest statute in Vigil is not analogous to the more general provisions of § 30-9-13. The district court in Vigil explained that Colorado’s aggravated-incest statute could satisfy § 4B1.2’s elements clause because it “contain[ed] as an element the threatened use of physical force.” Id. While the statute did not “expressly require the threatened use of physical force,” the court determined “that the requisite threat of force is implied whenever a parent inflicts [incest] on his or her child.” Id. (emphasis added). We agreed, and quoting a Fourth Circuit case, we viewed incest as occurring in “a unique situation of dominance and control” based on “the youth and vulnerability of children, coupled with the power inherent in a parent’s position of authority.” Id. at 1220 (quoting United States v. Pierce, 278 F.3d 282, 290 (4th Cir. 2002)). As a result, we affirmed the district court’s determination that incest “permits the inference of a threat of force,” bringing it within § 4B1.2’s elements clause. Id. But since § 30-9-13 covers sexual abuse of minors in more than the unique circumstances of incest, Vigil does not help the government. Finally, the government argues that Vigil “found support in United States v. Passi, 62 F.3d 1278 (10th Cir. 1995),” which predates Hahn’s sentencing and is therefore instructive. Appellee’s Resp. to Appellant’s Appl. for a Certificate of Appealability 30. That is so, but Vigil relied on Passi only for the general proposition that aggravated incest, not all sexual abuse of a minor, can qualify as a crime of violence. More to the point, Passi’s classification of Kansas’s aggravated- incest statute as a crime of violence under the Sentencing Guidelines was based on 19  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 20 our reasoning in Reyes-Castro that “when an older person attempts to sexually touch a child under the age of fourteen, there is always a substantial risk that physical force will be used to ensure the child’s compliance.” Passi, 62 F.3d at 1281 (emphasis added) (quoting Reyes-Castro, 13 F.3d at 379). And the “substantial risk” of physical force is language from § 16’s residual clause. As a result, Passi itself does not suggest that the more general provisions of § 30-9-13 might fall within § 16’s elements clause. And even if Vigil’s later gloss on Passi might suggest otherwise, our assessment of the background legal environment at Hahn’s sentencing “does not take into account” that “clarifi[cation] or correct[ion].” Snyder, 871 F.3d at 1129. Thus, Vigil does not persuade us that Hahn’s sentencing court would have departed from our on-point precedent in Reyes-Castro without any suggestion in the sentencing record that it was doing so. 4 We conclude that, at the time of Hahn’s sentencing, rules of interpretation and our circuit’s residual-clause precedents would have required the sentencing court to classify § 30-9-13 as a crime of violence under § 16’s now-invalid residual clause. Hahn’s motion therefore relies on Dimaya’s rule. 5. Conclusion Hahn has met his burden to show that his § 2255 motion relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme 4 We find additional support for our inference here in the Vigil district court’s recognition that it was breaking new ground that required explanation. See Vigil, 334 F.3d at 1219 (discussing the district court’s explanation for holding that Colorado’s aggravated-incest law qualified as a crime of violence under § 4B1.2’s elements clause). 20  Appellate Case: 24-2069 Document: 90-1 Date Filed: 08/07/2026 Page: 21 Court, that was previously unavailable.” 28 U.S.C. § 2255. The district court therefore had jurisdiction to consider his motion, and we have jurisdiction to consider his appeal. B. Timeliness of Hahn’s Motion Hahn must still show that his motion is not barred by AEDPA’s statute of limitations. While he concedes that his motion is untimely, he argues he is entitled to the miscarriage-of-justice exception to the time-bar. We hold that Hahn’s failure to prove he is actually innocent of the equally serious or more serious charges the government dismissed in exchange for his plea forecloses that relief. As a result, Hahn’s motion cannot go forward. 5 1. Statute of Limitations and Equitable Tolling AEDPA imposes a one-year limitation period on § 2255 motions. 28 U.S.C. § 2255(f). Hahn concedes that his motion is late because Dimaya was decided in 2018 and he did not file until 2021. See id. § 2255(f)(3). But he argues his motion should go forward based on an exception to the time-bar. We recognize two equitable exceptions to AEDPA’s statute of limitations: (1) equitable tolling, United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008), and (2) miscarriage of justice, Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014). Hahn’s motion argued that he could receive an exception under either theory. 5 Along with timeliness, the district court considered whether Hahn had procedurally defaulted his claim by not raising it in an earlier habeas motion. Hahn conceded default but successfully argu