United States District Court, E.D. Tennessee, Knoxville
W. Phillips SENIOR 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. 20]. 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.].
The United States responded in opposition on February 3, 2017
[Doc. 22]; Petitioner replied in turn on February 17, 2017
[Doc. 23]. For the reasons that follow, the petition will be
DENIED and DISMISSED WITH PREJUDICE.
2012, Petitioner pled guilty to unlawfully reentering the
United States after having been deported following a
conviction for an aggravated felony, in violation of 18
U.S.C. § 1326(a)(1), (b)(2) [Presentence Investigation
Report (PSR) ¶¶ 1-3]. The United States Probation
Office assigned Petitioner a base offense level of eight
under Section 2L1.2(a) of the United States Sentencing
Guidelines, but applied a sixteen-level enhancement under
Section 2L1.2(b)(1)(A) based on Petitioner's prior
California conviction for carjacking and robbery
[Id. ¶¶ 14, 15, 28].A three-level
reduction for acceptance of responsibility yielded a total
offense level of twenty-one, which combined with
Petitioner's criminal history category of VI to produce
an advisory Guideline range of 77 to 96 months'
imprisonment [Id. ¶¶ 21, 22, 53]. On
October 17, 2012, this Court sentenced Petitioner to 77
months' imprisonment [Doc. 18]. He did not appeal.
three-and-a-half years later-on June 22, 2016, Petitioner
filed the instant § 2255 motion challenging his sentence
based on the Johnson decision [Doc. 20 (arguing that
his California conviction for carjacking and robbery no
longer qualifies as a “crime of violence”)].
STANDARD OF REVIEW
relief authorized by 28 U.S.C. § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” United States v. Addonizio, 442
U.S. 178, 185 (1979). Rather, a 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).
extent that Petitioner's argues he no longer possesses
predicate offenses sufficient for categorization as an armed
career criminal under § 924(e), enhancement as a
career-offender under Section 4B1.1 of the United States
Sentencing Guidelines, or application of an enhanced base
offense level under Section 2K2.1 of the same, that argument
fail because the record demonstrates that he was never
subjected to those provisions [PSR ¶¶ 14, 15, 21,
22, 28, 53].
extent that Petitioner challenges application of the
sixteen-level enhancement under Section 2L1.2(b)(1)(A), that
argument fails because the definition for “crime of
violence” under Section 2L1.2 does not contain a
residual clause like the one invalidated by the
Johnson decision. Thus, the Johnson
decision is inapposite to the instant case and cannot serve
as a basis for relief.
reasons discussed, the § 2255 motion [Doc. 20] 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