United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Petitioner's pro se request to amend his
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255, to include a request for collateral
relief based on Johnson v. United States, 135 S.Ct.
2551 (2015) [Doc. 824]. The United States filed a response in
opposition on August 11, 2016 [Doc. 831]. 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, Petitioner's
motion for leave to amend [Doc. 824] is DENIED.
2011, Petitioner was convicted of conspiring to distribute
and possess with intent to distribute at least five kilograms
of cocaine hydrochloride, at least fifty grams of crack
cocaine, and quantities of marijuana and ecstasy, in
violation 21 U.S.C. §§ 846 and 841(a)(1);
possessing with intent to distribute marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); two counts of
aiding and abetting the possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c); possessing a firearm as a felony, in
violation of 18 U.S.C. § 922(g); employing a minor to
commit a drug trafficking offense, in violation of 21 U.S.C.
§ 861(a)(1); conspiring to commit money laundering, in
violation of 18 U.S.C. § 1956; and committing money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i)
[Doc. 672]. On April 22, 2011, this Court sentence Petitioner
to an aggregate sentence of 720 months' imprisonment
followed by twenty years' supervised release, a term at
the bottom of his Guideline range [Id.]. Petitioner
appealed, but the Sixth Circuit affirmed his conviction [Doc.
729]. The Supreme Court declined Petitioner's request for
a writ of certiorari on October 8, 2013 [Doc. 747].
filed an original § 2255 petition on October 8, 2014
[Doc. 761]. On February 3, 2015, Petitioner filed the first
of two requests for leave to amend that original petition
[Doc. 777]. During pendency of the petition and first motion
to amend, on June 26, 2015, the United States Supreme Court
invalidated the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), with the
Johnson decision. Less than one year later,
Petitioner submitted what the Court interprets as a second
motion for leave to amend the petition-this time requesting
leave to incorporate a new collateral challenge to his §
924(c) conviction based on the Johnson decision
[Doc. 824 (seeking vacatur of his § 924(c) conviction)].
The instant Memorandum and Order addresses only
Petitioner's most recent request to amend.
it is true that Rule 15(a) of the Federal Rules of Civil
Procedure provides that leave to amend should “be
freely given when justice so requires, ” Fed.R.Civ.P.
15(a), relevant factors include “undue delay in filing,
lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and
futility of amendment.” Anderson v. Young
Touchstone Co., 735 F.Supp.2d 831, 833 (W.D. Tenn. 2010)
(quoting Forman v. Davis, 371 U.S. 178, 182 (1965)).
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 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 [Doc. 672]. 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)
reasons discussed, Petitioner's motion to amend [Doc.
824] is DENIED for futility.