United States District Court, E.D. Tennessee
KAYLON M. BATTS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
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.
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)].
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. 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)
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
APPROPRIATE ORDER WILL ENTER.
 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 ...