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. 327]. He bases the 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”), 18 U.S.C.
§ 924(e), was unconstitutionally vague [Id.].
The United States responded in opposition on July 20, 2016
[Doc. 329]. 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 § 2255 motion [Doc. 327]
will be DENIED and DISMISSED WITH PREJUDICE.
pled guilty to conspiring to distribute at least five
kilograms of cocaine, in violation of 21 U.S.C. §§
846 and 841(a)(1), (b)(1)(A); and conspiring to commit money
laundering, in violation of 18 U.S.C. § 1956(h)
[Presentence Investigation Report (PSR) ¶ 3]. As part of
his plea agreement, Petitioner stipulated that he was
responsible for at least fifteen grams of cocaine [Doc. 106
¶ 3(c)], which resulted in a total offense level of
thirty three after a two-level enhancement for money
laundering and three-level reduction for acceptance of
responsibility [PSR ¶¶ 39, 40, 46-48].
Petitioner's total offense level, seventeen criminal
history points, and criminal history category of VI yielded a
Guidelines range of 235 to 293 months' imprisonment,
restricted an enhanced twenty-year statutory mandatory
minimum [PSR ¶¶ 71, 94]. This Court granted the
United States' motion for downward departure and
sentenced Petitioner to 151 months' incarceration [Doc.
209]. No direct appeal was taken.
months later, Petitioner filed a motion for reduction
pursuant to 18 U.S.C. § 3582(c)(2) and Guidelines
Amendment 782 [Doc. 315]. This Court reduced Petitioner's
sentence to 188 months' incarceration [Doc. 323]. On June
20, 2016, Petitioner submitted the instant motion seeking
vacatur of his sentence in light of the Johnson
decision [Doc. 327].
STANDARD OF REVIEW
relief authorized by 28 U.S.C. § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” United States v. Addonizio, 442
U.S. 178, 185 (1979). Rather, a 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).
argument that he no longer possesses predicate offenses
sufficient for categorization as an armed career criminal
under § 924(e), enhancement as a career-offender under
Section 4B1.1 of the United States Sentencing Guidelines, or
application of an enhanced base offense level under Section
2K2.1 of the same fails because the record conclusively
demonstrates that he was never subjected to these provisions
[PSR ¶¶ 39, 40, 46-48, 71, 94].
extent that Petitioner complains that he received criminal
history points for prior convictions that “were not
violent in their nature, ” the Johnson
decision is inapposite. Each prior conviction that resulted
in criminal history points did so because it constituted a
prior “sentence of imprisonment exceeding one year and
one month” under Section 4A1.1(a), prior
“sentence of imprisonment of at least sixty days”
under Section 4A1.1(b), or otherwise qualified under Section
4A1.1(c), not because it was a “crime of
violence” under the ACCA residual clause.
reasons discussed, Petitioner's § 2255 motion [Doc.
327] 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