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Rosado-Jaime v. United States

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

March 15, 2017

FRANCISCO ROSADO-JAIME, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          RONNIE GREER 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. 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.

         I. BACKGROUND

         In 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.

         Over 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].

         II. ANALYSIS

         To the 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 provisions.[1]

         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), that argument fails for two reasons.

         First, 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.[2]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”).

         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 [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.

         IV. CONCLUSION

         For the 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 Appellate Procedure.

         AN APPROPRIATE ...


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