United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. 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. 52]. 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.].
For the reasons below, the petition will be DENIED and
DISMISSED WITH PREJUDICE.
September of 2014, Petitioner pled guilty to conspiring to
distribute 50 grams or more of methamphetamine or 500 grams
or more of a mixture and substance containing the same, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)
(Count One); and possessing a firearm in furtherance of a
drug trafficking offense, in violation of 18 U.S.C. §
924(c) (Count Two) [Docs. 33, 36, 50]. With regard to Count
One, the United States Probation Office assigned a base
offense level of thirty-eight based on the quantity of drugs
possessed, which resulted in a total offense level of
thirty-five after a three-level reduction for acceptance of
responsibility [Presentence Investigation Report (PSR)
¶¶ 20-30]. Petitioner's criminal history
category of V yielded an advisory Guideline range of 262 to
327 months and effective Guideline range of 322 to 387 months
when combined with the statutory minimum of five years'
incarceration applicable to Count Two [Id. ¶
58]. On January 13, 2015, this Court sentenced Petitioner to
322 months' incarceration-a 262-month term for Count One
and consecutive 60-month term for Count Two [Doc. 50].
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 [Docs. 33, 36, 50].
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). The
Johnson decision 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) conviction.
extent that Petitioner argues he no longer possesses
predicate offenses sufficient to support categorization as an
armed career criminal under the ACCA, career-offender under
Section 4B1.1, or an enhanced base offense level under
Section 2K2.1(a), that argument fails because his PSR
demonstrates that he was never subjected to any of those
provisions [PSR ¶¶ 20-30].
reasons discussed, Petitioner's § 2255 motion [Doc.
52] 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