United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
the Court is the United States' motion to deny and
dismiss Petitioner's pro se motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255
[Doc. 43]. Petitioner submitted the relevant § 2255
petition on June 30, 2016 [Doc. 36]. In it, he challenges his
enhancement under Section 2K2.1 of the United States
Sentencing Guidelines based on Johnson v. United
States, 135 S.Ct. 2551 (2015), which held that the
residual provision of the Armed Career Criminal Act, 18
U.S.C. § 924(e), was unconstitutionally vague
[Id. (suggesting that his sentence is no longer
valid because the residual provision in Section 4B1.2 is
March 6, 2017, the Supreme Court issued Beckles v. United
States, which held that the United States Sentencing
Guidelines are “not amenable to vagueness
challenges.” 137 S.Ct. 886, 894 (2017). Two weeks
later, this Court entered an Order (1) explaining that
Beckles necessarily meant that “Johnson .
. . does not undermine sentences based on Guideline
enhancements;” (2) instructing the parties to
“file any motion that they want[ed] the Court to
consider in conjunction with, or prior to, ruling on [the
instant] petition on or before April 1, 2017;” and
(3) requiring that responsive pleadings be filed on or before
April 15, 2017 [Doc. 42].
March 28, 2017, the United States filed the instant motion to
dismiss Petitioner's Johnson-based challenge to
his career offender designation in light of Beckles
[Doc. 43]. Petitioner has not filed a response and the time
for doing so has now passed [Doc. 42]. This Court interprets
the absence of a response as a waiver of opposition. See,
e.g., Notredan, LLC v. Old Republic Exch.
Facilitator Co., 531 F. App'x 567, 569 (6th Cir.
2013) (explaining that failure to respond or otherwise oppose
a motion to dismiss operates as both a waiver of opposition
to, and an independent basis for granting, the unopposed
motion); see also E.D. Tenn. L.R. 7.2
(“Failure to respond to a motion may be deemed a waiver
of any opposition to the relief sought”).
Beckles forecloses Johnson-based collateral
relief from Petitioner's Guideline enhancement and
because this Court interprets Petitioner's failure to
respond to the United States' request for dismissal as a
waiver of opposition, the motion to deny and dismiss [Doc.
43] will be GRANTED and petition [Doc. 36]
will be DENIED and DISMISSED WITH
Court is also in possession of Petitioner's pro se
motions to hold the action in abeyance pending resolution of
Beckles [Doc. 40], and requesting that counsel be
appointed to assist litigation of a potential
Beckles-based collateral challenge [Doc. 41]. The
former [Doc. 40] is DENIED as moot in light
of the fact that the Supreme Court decided Beckles
on March 6, 2017. The Latter [Doc. 41] is DENIED as
moot because this Court previously appointed Federal
Defenders of Eastern Tennessee (FDSET) to determine
“identify defendants with a claim for relief under
Johnson” and appointed FDSET to
“represent any defendant who seeks relief under §
2255 in light of Johnson.” See E.D.
Tenn. SO-16-02 (Feb. 11, 2016). That appointment would
include consideration of what, if any, impact
Beckles has on Petitioner's conviction and
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).
 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
Johnson. 135 S.Ct. at 2563.
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 ...