United States District Court, E.D. Tennessee, Knoxville
DAVID W. O'DELL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
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. 423]. On February 11, 2016, this Court appointed
Federal Defender Services of Eastern Tennessee
(“FDSET”) to review the case to determine whether
Petitioner is eligible for collateral relief based on
Johnson v. United States, 135 S.Ct. 2551 (2015),
which invalidated the residual provision of the Armed Career
Criminal Act, 18 U.S.C. § 924(e), for unconstitutional
vagueness. See E.D. Tenn. SO-16-02 (Feb. 11, 2016).
Petitioner filed a pro se request for relief on June 9, 2016,
challenging his sentence based on the Johnson
decision [Doc. 423 (arguing that his sentence was improperly
enhanced)]. FDSET did not file a supplement.
March 21, 2017, Petitioner filed a pro se request for the
appointment of counsel to investigate his eligibility for
collateral relief in light of Johnson v. United
States, 135 S.Ct. 2551 (2015) [Doc. 458]. However, as
previously stated, the Court has already appointed counsel to
look into whether the Petitioner has a claim under the
Johnson decision. As such, Petitioner's request
for the same is [Doc. 458] DENIED as moot in light of this
Court's Standing Order.
Supreme Court decided Beckles v. United States on
March 6, 2016, holding that the United States Sentencing
Guidelines are “not amenable to vagueness
challenges.” Beckles v. United States, No.
15-8544, 2017 WL 855781, at *7 (U.S. March 6, 2017). Thus,
binding authority now dictates that the Johnson
decision does not undermine or adversely affect the instant
the Beckles decision forecloses any possibility of
Johnson-based relief, Petitioner's § 2255
motion [Doc. 423] will be DENIED and DISMISSED WITH
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 Fed. R.
App. P. 24. 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; Fed. R. App. P. 22(b).
IS SO ORDERED.
 The ACCA mandates a fifteen-year
sentence for any felon who unlawfully possesses a firearm
after having sustained three prior convictions “for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another.” 18 U.S.C.
§ 924(e)(1). The statute defines “violent
felony” as “any crime punishable by imprisonment
for a term exceeding one year” that (1) “has as
an element the use, attempted use, or threatened use of
physical force against the person of another” (the
“use-of-physical-force clause”); (2) “is
burglary, arson, or extortion, involves the use of
explosives” (the “enumerated-offense
clause”); or (3) “otherwise involves conduct that
presents a serious potential risk of physical injury to
another” (the “residual clause”). 18 U.S.C.
§ 924(e)(2)(B). It was this third clause-the residual
clause-that the Supreme Court deemed unconstitutional in the
Johnson decision. 135 S.Ct. at 2563.
Section 4B1.1 enhances a defendant's offense level
if he or she qualifies as a “career offender, ”
i.e., adult defendant whose offense of conviction is a
“crime of violence or controlled substance
offense” and who has “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S. Sentencing Manual §
The Guidelines set a general base offense level of
fourteen for violating 18 U.S.C. § 922(g). U.S.
Sentencing Manual § 2K2.1(a)(6). For offenders with one
prior conviction for either a “crime of violence”
or “controlled substance offense, ” the base
offense level increases to twenty. U.S. Sentencing Manual
§ 2K2.1(a)(4). Offenders with two such convictions face
a base offense level of twenty-four. U.S. Sentencing Manual
§ 2K2.1(a)(2). “Controlled substance
offense” is defined as any offense “punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance . . . or the possession of
controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense.” U.S.
Sentencing Manual § 4B1.2(b). “Crime of
violence” is ...