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