United States District Court, E.D. Tennessee, Chattanooga
Christopher H. Steger, Magistrate Judge
R. McDONOUGH, 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. (Docs. 63, 65.) 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 on August 18, 2016
(Doc. 69); Petitioner replied in turn on September 6, 2016
(Doc. 70). For the reasons below, Petitioner's
supplemented § 2255 motion (Docs. 63, 65) will be DENIED
and DISMISSED WITH PREJUDICE.
2002, Petitioner robbed a liquor store at gunpoint.
United States v. Wilhite, 108 F. App'x 367, 368
(6th Cir. 2004). A jury convicted him of Hobbs Act robbery,
in violation of 18 U.S.C. § 1951; brandishing a firearm
during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c); and possessing a firearm as a
felon, in violation of 18 U.S.C. § 922(g). Id.
on several prior convictions-including Alabama convictions
for robbery and escape, a Texas conviction for sexual abuse,
and a federal conviction for retaliation-the United States
Probation Office deemed Petitioner to be an armed career
criminal under the ACCA and career offender under Section
4B1.1 of the United States Sentencing Guidelines; the
resulting Guideline range was restricted by the enhanced
mandatory sentencing provisions of 18 U.S.C. § 3559(c).
(Presentence Investigation Report (PSR) ¶¶ 33, 38,
40, 47-50, 53, 71-75.) Consistent with § 3559(c), the
Court sentenced Petitioner to life imprisonment followed by a
consecutive 84-month term of incarceration for the §
924(c) offense. (Doc. 43.) Petitioner appealed, but the Sixth
Circuit affirmed his conviction and sentence. (Doc. 57.) The
Supreme Court denied Petitioner's request for a writ of
certiorari on January 10, 2005. (Doc. 60.) Eleven years
later- on June 7, 2016-Petitioner filed the instant motion
challenging his conviction based on the Johnson
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).
The argument fails because 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”). As
such, Hobbs Act robbery remains a crime of violence capable
of supporting the conviction under § 924(c)(1)(A). To
the extent that Petitioner challenges his armed career
criminal designation, the Court finds that it need not
address that issue, because it based the sentence
imposed-life imprisonment followed by 84 months'
incarceration for the § 924(c) offense-on the penalties
set forth in § 3559(c). (PSR ¶¶ 33, 38, 40,
47-50, 53, 71-75.) Under that statute, a defendant convicted
in federal court of a “serious violent felony shall be
sentenced to life imprisonment if [he] has been convicted . .
. on separate prior occasions . . . of . . . [two] or more
serious violent felonies.” 18 U.S.C. § 3559(c)(1).
The provision goes on to define “serious violence
felony” as follows:
(i) a Federal or State offense, by whatever designation and
wherever committed, consisting of murder (as described in
section 1111); manslaughter other than involuntary
manslaughter (as described in section 1112); assault with
intent to commit murder (as described in section 113(a));
assault with intent to commit rape; aggravated sexual abuse
and sexual abuse (as described in sections 2241 and 2242);
abusive sexual contact (as described in sections 2244 (a)(1)
and (a)(2)); kidnapping; aircraft piracy (as described in
section 46502 of Title 49); robbery (as described in section
2111, 2113, or 2118); carjacking (as described in section
2119); extortion; arson; firearms use; firearms possession
(as described in section 924(c)); or attempt, conspiracy, or
solicitation to commit any of the above offenses [the
enumerated-offense clause]; and
(ii) any other offense punishable by a maximum term of
imprisonment of 10 years or more that has as an element the
use, attempted use, or threatened use of physical force
against the person of another [the elements clause] or that,
by its nature, involves a substantial risk that physical
force against the person of another may be used in the course
of committing the offense [the residual clause].
18 U.S.C. § 3559(c)(2)(F). Because at least two of
Petitioner's prior convictions-the Alabama conviction for
robbery and Texas conviction for sexual abuse-qualify under
subdivision (i), it is irrelevant whether three or more of
his prior convictions remain “violent felonies”
under § 924(e).
extent Petitioner challenges his career offender designation
in light of the Johnson decision, that claim fails
as a matter of law. On March 6, 2017, the Supreme Court held
that the United States Sentencing Guidelines are “not
amendable to vagueness challenges.” Beckles v.
United States, No. 15-8544, 2017 WL 855781, at *7 (U.S.
March 6, 2017). As a result, the Johnso ...