United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
J. CAMPBELL UNITED STATES DISTRICT JUDGE.
before the Court is the Defendant's pro se
Motion To Appoint Counsel (Docket No. 71), raising
application of the recent Supreme Court decision in
Johnson v. United States, 135 S.Ct. 2551 (2015). The
Court has appointed counsel for the Defendant, and has
required the preparation of a supplemental presentence report
and the filing of a response by the Government. (Docket Nos.
72, 77). For the reasons set forth herein, the Court
concludes that the Defendant is not entitled to relief.
Defendant pled guilty, without a plea agreement, to being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). (Docket No. 45). At the subsequent
sentencing hearing, the Court determined that the applicable
guideline sentencing range was 77 to 96 months of
imprisonment, based on a total offense level of 21 and a
criminal history category of VI. (Docket Nos. 55, 56). The
Court applied United States Sentencing Guideline 2K2.1 in
determining the total offense level, which required an
increase for the Defendant's prior felony drug
conviction. The Defendant's criminal history category of
VI was based on a total of 26 criminal history points. The
Court imposed a sentence of 77 months of imprisonment.
Defendant appealed the judgment, and the Sixth Circuit
affirmed. United States v. Timothy Lamont Robertson,
63 Fed.Appx. 851 (6th Cir. Apr. 28, 2003).
Defendant requests that the Court apply the decision in
Johnson to reduce his sentence. The Government
argues that the Johnson decision does not apply.
Johnson, the Supreme Court held that the so-called
“residual clause” of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague. The ACCA provides for a 15-year
mandatory minimum sentence for defendants convicted of
certain firearms offenses who have three previous convictions
for a “violent felony” or a “serious drug
offense.” 18 U.S.C. § 924(e)(1). The statute goes
on to define “violent felony” as follows, with
the residual clause set forth in italics:
(2) As used in this subsection-
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
adult, that -
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another. .
added). The Johnson Court's decision did not
call into question the remainder of the Act's definition
of “violent felony, ” nor did the Court address
the Act's definition of “serious drug
offense.” 135 S.Ct. at 2563. The Supreme Court has
subsequently held that the Johnson decision ...