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Batts v. United States

United States District Court, E.D. Tennessee

January 9, 2017

KAYLON M. BATTS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 [Doc. 118]. She bases her 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”) was unconstitutionally vague [Id.]. The United States responded in opposition on July 29, 2016 [Doc. 122]. Petitioner did not reply and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. For the following reasons, Petitioner's § 2255 motion [Doc. 118] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2014, Petitioner pled guilty to attempted armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and carjacking, in violation of 18 U.S.C. § 2119 [Doc. 45]. The United States Probation Office calculated Petitioner's Guideline range as 84 to 105 months' imprisonment, followed by the statutorily mandated consecutive minimum sentence of 84 months' for the § 924(c) offense [Presentence Investigation Report (PSR) ¶¶ 40, 49, 65- 67]. On May 14, 2014, this Court sentenced Petitioner to an aggregate term of 240 months' imprisonment-concurrent 120-month terms for the bank robbery and carjacking offenses and a consecutive 84-month term for the § 924(c) offense [Doc. 82]. No direct appeal was taken. Slightly over two years later-on June 20, 2016-Petitioner filed the instant collateral challenge based on the Johnson decision [Doc. 118 (seeking vacatur of his § 924(c) conviction)].

         II. ANALYSIS

         Petitioner's argument appears to be that the Johnson decision invalidated the similarly-worded residual clause in § 924(c)(3)(B), thereby precluding his violation of 18 U.S.C. § 2113(a) and (d) from categorization as a “crime of violence” sufficient to support a conviction under § 924(c)(1)(A) [Doc. 118]. The argument fails because binding Sixth Circuit precedent holds that while Johnson invalidated the residual provision of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e), 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.[1] 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”). As such, Petitioner's attempted armed bank robbery conviction remains capable of supporting his § 924(c) conviction.

         IV. CONCLUSION

         For the reasons discussed, Petitioner's § 2255 motion [Doc. 118] 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 Appellate Procedure.

         AN APPROPRIATE ORDER WILL ENTER.

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Notes:

[1] 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 Manual § 4B1.2(a) (adopting identical use-of-force and residual clauses as well as a nearly identical enumerated-offense clause).

Section 924(c)(1)(A) makes it a crime for an individual, “in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, [to] use[, ] carr[y] [or possess] a firearm . . . in furtherance of . . . such crime.” 18 U.S.C. § 924(c)(1)(A). Section 924(c)(3) goes on to define “crime of violence” as any “felony” that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (use-of-physical-force clause); or “by its nature, involves a substantial risk that ...


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