United States District Court, E.D. Tennessee, Greeneville
GREER 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. 76]. 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.;
Doc. 77]. The United States filed a response in opposition on
August 1, 2016 [Doc. 79]. 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, the petition will be DENIED and
DISMISSED WITH PREJUDICE.
2010, Petitioner pled guilty to, and was later convicted of,
conspiring to distribute and possess with intent to
distribute at least 500 grams of cocaine, in violation of 21
U.S.C. § 846 and 841(a)(1), (b)(1)(B), and aiding and
abetting the use and carrying of a firearm during and in
relation to a drug trafficking crime, in violation of 18
U.S.C. §§ 2 and 924(c)(1)(A)(i) [Docs. 24, 28, 53].
As a result of his convictions, Petitioner faced
statutorily-mandated 60-month consecutive mandatory minimums
for his offenses [Presentence Investigation Report (PSR)
¶¶ 51, 52]. Consistent with the same, this Court
sentenced Petitioner to an aggregate term of 120 months'
incarceration on February 8, 2011 [Doc. 53]. Petitioner did
not file a direct appeal.
five years later-on June 20, 2016, Petitioner filed the
instant § 2255 motion requesting sentencing relief in
light of the Johnson decision [Docs. 76, 77].
extent that Petitioner argues that he no longer possesses the
predicate offenses for categorization as an armed career
criminal under the ACCA, career-offender under Section 4B1.1
of the United States Sentencing Guidelines, or an enhanced
base offense level under Section 2K2.1(a) of the same, that
argument fails because he was never subjected to those
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), that argument fails for two reasons.
binding Sixth Circuit precedent holds that while
Johnson invalidated the residual provision of the
ACCA, § 924(c)(3)(B)'s definition of crime of
violence remains unaffected.See 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 [Doc. 53]. 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.
reasons discussed, Petitioner's § 2255 motion [Doc.
76] 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