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. 55]. 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 (“ACCA”), 18 U.S.C.
§ 924(e), was unconstitutionally vague [Id.].
The United States responded in opposition [Doc. 57].
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. 55] will be DENIED and
DISMISSED WITH PREJUDICE.
pled guilty to, and was subsequently convicted of, conspiring
to distribute and possess with intent to distribute
oxycodone, in violation of 21 U.S.C. §§ 846 and
841(a)(1), (b)(1)(C); and possessing a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. §
924(c) [Doc. 53]. In 2013, this Court sentenced Petitioner to
an aggregate sentence of 94 months'
imprisonment-consecutive terms of 34 months for the drug
offense and 60 months for the § 924(c) offense [Doc.
53]. No direct appeal was taken. Three years later-on May 27,
2016-Petitioner filed the instant collateral challenge based
on the Johnson decision [Doc. 55].
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 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. 53]. 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 § 2255 motion [Doc.
55] 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