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Herrera v. United States

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

March 16, 2017

ANTONIO HERRERA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leon Jordan 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. 1227]. 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.]. The United States responded in opposition to collateral relief on July 29, 2016 [Doc. 1241]. For the reasons below, the petition will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2011, Petitioner pled guilty, pursuant to a written plea agreement, to conspiring to distribute and possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A); and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) [Presentence Investigation Report (PSR) ¶¶ 2-3, 9-35]. The Court sentenced Petitioner to an aggregate term of 211 months' imprisonment: 151 months for the drug offense, at the bottom of the applicable Guideline range, followed by the consecutive statutory mandatory minimum of 60 months for the firearms offense [Doc. 832]. Consistent with the appeal-waiver provision in his plea agreement, Petitioner did not appeal.

         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

         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) [Doc. 1227 (“Since 18 U.S.C. § 1203 is not categorically a crime of violence, the § 924(c)(1)(A)(i) enhancement is invalid in this [c]ase.”)]. The argument fails for three reasons.

         First, the crime that Petitioner possessed a firearm in furtherance of for purposes of § 924(c) was conspiracy to distribute at least five kilograms of cocaine, not a violation of the statute which he argues is no longer a crime of violence-18 U.S.C. § 1203.

         Second, 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.[1] 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”).

         Third, 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. 832]. 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. 1227] 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.

         IT ...


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