United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER 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. 243]. He bases his request for collateral 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 (the "ACCA"), 18
U.S.C. § 924(e), was unconstitutionally vague
[Id.]. The United States responded in opposition
[Doc. 245]. 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
below, the petition for collateral relief [Doc. 243] will be
DENIED and DISMISSED WITH PREJUDICE.
was convicted of conspiring to distribute and possessing with
intent to distribute at least five kilograms of cocaine, in
violation of 21 U.S.C. §§ 846 and 841(a)(1),
(b)(1)(A); and possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. 942(c). He was
subsequently sentenced to the statutorily-mandated minimum
term of imprisonment: 120 months for the drug offense,
followed by 60 months for the firearms offense. On June 24,
2016, Petitioner filed the instant petition challenging his
sentence in light of Johnson [Doc. 243].
STANDARD OF REVIEW
obtain relief under 28 U.S.C. § 2255, Petitioner must
demonstrate "(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law ... so fundamental as to render the
entire proceeding invalid." Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He "must clear a significantly higher
hurdle than would exist on direct appeal" and establish
a "fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process." Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
extent Petitioner argues that the Johnson decision
invalidated the residual clause in § 924(c)(3)(B)'s
definition of crime of violence and that the absence of that
provision requires vacatur of his conviction under §
924(c)(1)(A), the argument fails for two reasons.
binding Sixth Circuit precedent holds that while
Johnson invalidated the residual provision of the
ACCA and the identically worded clause in Section 4B1.2 of
the United States Sentencing Guidelines, §
924(c)(3)(B)'s definition of crime of violence remains
unaffected. See United States v.
Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) (concluding
"rationale of Johnson applies equally" to
the Guidelines' definition of crime of violence);
United States v. Taylor, 814 F.3d 340, 376-79 (6th
Cir. 2016) (recognizing at least four "significant
differences" between the residual clause in §
924(c)(3)(B) and the ACCA's residual clause and noting
"the argument that Johnson effectively
invalidated [the former] is . . . without merit").
even if Johnson's reasoning could be used to
invalidate § 924(c)(3)(B)'s residual clause,
Petitioner's conviction under § 924(c)(1)(A) did not
rely on that provision. To the contrary, Petitioner was
convicted of possessing a firearm in furtherance of a drug
trafficking crime, not crime of violence. The statute defines
"drug trafficking crime" as "any felony
punishable under the Controlled Substances Act, 21 U.S.C.
§§ 801, et seq., [or] the Controlled Substances
Import and Export Act, 21 U.S.C. §§ 951, et
seq." 18 U.S.C. § 924(c)(2). Johnson has
no bearing whatsoever on the scope of that definition.
Accord United States v. Jenkins, 613 F.App'x
754, 755 (10th Cir. 2015) (deeming Johnson
irrelevant to drug offenses). As such, Petitioner has failed
identify a viable basis for vacating his § 924(c)
extent that Petitioner seeks relief based on the fact 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, the argument fails
because the record demonstrates that he was never subjected
to any of those provisions [See generally ED. Tenn.
Case No. 2:07-cr-88-CLC-CHS-1; E.D. Tenn. Case No.
reasons discussed, Petitioner's § 2255 motion [Doc.
243] 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 Fed. R. App. P 24.
Petitioner having failed to make a substantial showing of the
denial of a ...