Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Dell v. United States

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

March 29, 2017

DAVID W. O'DELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          Thomas W. Phillips SENIOR 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. 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)].[1] FDSET did not file a supplement.

         On 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.

         The 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 sentence.

         Because the Beckles decision forecloses any possibility of Johnson-based relief, Petitioner's § 2255 motion [Doc. 423] 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 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).

         IT IS SO ORDERED.

---------

Notes:

[1] 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 § 4B1.1(a).

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.