United States District Court, E.D. Tennessee
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 40]. He bases the request for relief on
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the
Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e), was unconstitutionally vague [Id.].
The United States responded in opposition on August 1, 2016
[Doc. 41]. Petitioner did not reply and the time for doing so
has now passed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons
that follow, the petition [Doc. 40] will be DENIED and
DISMISSED WITH PREJUDICE.
2015, Petitioner pled guilty to, and was subsequently
convicted of, two counts of distributing child pornography,
in violation of 18 U.S.C. § 2252A(a)(2)(A) [Doc. 35].
Based on a total offense level of thirty-nine and criminal
history category of III, the United States Probation Office
calculated his Guideline range as 324 to 405 months'
imprisonment [Presentence Investigation Report
("PSR") 27-41, 45-48, 68]. Petitioner was assigned
two criminal history points based on a prior Tennessee
conviction for attempted aggravated sexual battery, and an
additional two criminal history points because he committed
the instant offense while on probation for that offense
[Id. ¶¶ 45, 47]. On August 12, 2015, this
Court imposed a 324-month sentence [Doc. 35]. No direct
appeal was taken and, on June 30, 3016, Petitioner submitted
the instant § 2255 motion challenging his sentence in
light of Johnson [Doc. 36].
argument that he no longer possesses predicate offenses
sufficient to support categorization as an armed career
criminal under the ACCA, career-offender under Section 4B1.1
of the United States Sentencing Guidelines, or an enhanced
base offense level under Section 2K2.1(a) of the same fails
because his PSR conclusively demonstrates that he was never
subjected to any of these provisions [Docs. 17, 19, 23, 28,
extent that Petitioner complains that he received criminal
history points for his prior conviction for attempted
aggravated sexual battery, the Johnson decision is
inapposite. That offense resulted in two criminal history
points because it constituted a prior “sentence of
imprisonment” under Section 4A1.1(b) of the United
States Sentencing Guidelines, not because it was a
“crime of violence” under the ACCA residual
clause or similarly-worded provision.
reasons discussed, Petitioner's § 2255 motion [Doc.
40] will be DENIED and DISMISSED WITH PREJUDICE. The Court
will CERTIFY any appeal from this action would not be taken
in good faith and would be totally frivolous. Therefore, this
Court will DENY Petitioner leave to proceed in forma
pauperis on appeal. See Rule 24 of the Federal
Rules of Appellate Procedure. Petitioner having failed to
make a substantial showing of the denial of a constitutional
right, a certificate of appealability SHALL NOT ISSUE. 28
U.S.C. § 2253; Rule 22(b) of the Federal Rules of
APPROPRIATE ORDER WILL ENTER.
 The ACCA mandates a 15-year sentence
for any felon who unlawfully possesses a firearm after having
sustained three prior convictions “for a violent felony
or a serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. §
924(e)(1). The statute defines “violent felony”
as “any crime punishable by imprisonment for a term
exceeding one year” that (1) “has as an element
the use, attempted use, or threatened use of physical force
against the person of another” (the
“use-of-physical-force clause”); (2) “is
burglary, arson, or extortion, involves the use of
explosives” (the “enumerated-offense
clause”); or (3) “otherwise involves conduct that
presents a serious potential risk of physical injury to
another” (the “residual clause”). 18 U.S.C.
§ 924(e)(2)(B). It was this third clause-the residual
clause-that the Supreme Court deemed unconstitutional in
Johnson. 135 S.Ct. at 2563.
Section 4B1.1 enhances a defendant's offense level
if he or she qualifies as a “career offender, ”
i.e., adult defendant whose offense of conviction is a
“crime of violence or controlled substance
offense” and who has “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S. Sentencing Manual §
4B1.1(a). “Crime of violence” under the
Guidelines is defined in an almost identical manner as
“violent felony” under the ACCA. See
U.S. Sentencing ...