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Dodge v. United States

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

February 10, 2017

MARTIN DODGE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         In 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].

         II. STANDARD OF REVIEW

         To 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).

         III. ANALYSIS

         To the 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.

         First, 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.[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”).

         Second, 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.

         To the 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].

         IV. CONCLUSION

         For the 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 ...


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