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Gilmore v. United States

United States District Court, E.D. Tennessee, Knoxville

January 25, 2017

ERRICK E. GILMORE, Petitioner,



         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 76]. He requests collateral relief based 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.].l The United States responded in opposition on December 2, 2016 [Doc. 79]. Petitioner did not reply and the time for doing so has now has lapsed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons below, Petitioner's § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         On December 31, 2008, Petitioner and an accomplice went through the drive-thru of a Burger King, pointed a shot-gun at the drive-thru employee, demanded cash, and then fled once they obtained the money [Doc. 51 ¶ 4]. He was subsequently caught and pled guilty to committing Hobbs Act robbery, in violation of 18 U.S.C. § 1951; using, carrying, and brandishing a firearm during and in relation to that robbery, in violation of 18 U.S.C. § 924(c); and possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) [Id. ¶ 1]. In his plea agreement, Petitioner “knowingly and voluntarily waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255, ” with the exception of petitions raising “claims of ineffective assistance of counsel or prosecutorial misconduct” [Id. ¶ 10(b)].

         Based on prior Tennessee convictions for Class D burglary [Presentence Investigation Report (PSR) ¶ 48; Docs. 79-1, 79-2], aggravated burglary [PSR ¶ 50; Docs. 79-3, 79-4], aggravated assault [PSR ¶ 52; Docs. 79-5, 79-6], and possession of cocaine for resale [PSR ¶ 55; Docs. 79-7], the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's enhanced fifteen-year mandatory minimum sentence. This Court agreed and sentenced Petitioner to an aggregate sentence of 264 months' incarceration-concurrent 180-month terms for the Hobbs Act robbery and gun offense followed by a consecutive 84-month term for the § 924(c) offense-and five years of supervised release on June 6, 2011 [Doc. 69]. No direct appeal was taken and Petitioner's conviction became final for purposes of § 2255(f)(1) on June 20, 2011, at expiration of time to appeal. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (explaining that an unappealed judgment of conviction becomes final when the fourteen-day period for filing a direct appeal has elapsed).

         Before the Court is a collateral challenge to Petitioner's sentence based on the Johnson decision [Doc. 76]. While Petitioner initially filed the challenge with the Sixth Circuit, it was transferred to this Court on October 28, 2016 [Doc. 75].


         The 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).

         III. ANALYSIS

         The petition asserts a single ground, arguing the Johnson decision removed his convictions aggravated burglary, aggravated assault, and possession of cocaine convictions from § 924(e)(2)(B)'s definition of violent felony and that, without those convictions, Petitioner no longer qualifies for ACCA enhancement [Doc. 76]. The United States opposes relief based on the fact that at least three prior convictions qualify as predicates without the residual clause [Doc. 79].[1]

         The ACCA mandates a fifteen-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) (emphasis added). The provision defines “serious drug offense” as any “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The Act goes on to define “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). Only the third portion of the above definition-the residual clause-was held to be unconstitutionally vague by the Supreme Court in Johnson. 135 S.Ct. at 2563. The Court went on to make clear, however, that its decision did not call into question the remainder of the ACCA's definition of violent felony-the use-of-physical-force and enumerated-offense clauses. Id.; United States v. Priddy, 808 F.3d 676, 682-83 (6th Cir. 2015). Nor does Johnson disrupt the use of a defendant's prior serious drug offenses as an independent form of ACCA predicate conviction. See, e.g., United States v. Smith, No. 10-CR-20058, 2015 WL 5729114, at *9-13 (E.D. Mich. Sept. 20, 2015) (noting that Johnson does not affect a defendant's categorization as an armed career criminal based on his or her prior serious drug offenses).

         The validity of Petitioner's sentence thus depends on whether three or more of his prior convictions qualify as “serious drug offenses” under § 924(e)(2)(A) or, in the alternative, “violent felonies” under one of the unaffected provisions of § 924(e)(2)(B). See, e.g., United States v. Ozier, 796 F.3d 597, 604 (6th Cir. 2015) (denying petition where conviction qualified as a predicate offense independent of the residual clause), overruled on other grounds by Mathis v. United States, 136 S.Ct. 2243, 2251 n. 1 (2016). To determine whether a particular offense qualifies as a violent felony under any of the prongs of the above definition, courts must first identify the precise crime of conviction. Descamps, 133 S.Ct. at 2285. They do so by employing a “categorical approach, ” under which they look “only to the statutory definitions-elements-of a defendant's prior offense, and not to the particular facts underlying [each individual] conviction[].” Id. at 2283. When the conviction involves violation of a “divisible” statute-one which comprises multiple, alternative versions of the crime-courts resort to the “modified categorical approach” under which they “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.” Id. at 2281.

         As an initial matter, the Court notes that two of the three convictions designated as predicate offenses supporting ACCA enhancement were Tennessee convictions for Class D burglary and possession of cocaine. Binding Sixth Circuit precedent makes clear that both offenses remain predicates after the Johnson decision; Class D burglary under the enumerated-offense clause, see United States v. Priddy, 808 F.3d 676, 685 (6th Cir. 2015) (finding that post-1989 Tennessee Class D burglary is categorically a violent felony under the ACCA's enumerated offense clause), [2] and possession of cocaine as a serious drug offense, under the use-of-physical-force clause, see United States v. Jenkins, 613 F. App'x 754, 755 (10th Cir. 2015) (deeming ...

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