United States District Court, E.D. Tennessee
Jordan United States District Judge
the Court is the United States' motion to deny and
dismiss Petitioner's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 [Doc.
41]. Petitioner submitted the relevant § 2255 petition
on June 24, 2016 [Doc. 33]. 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 (suggesting that his sentence is no longer
valid because the residual clause in Section 4B1.2 is equally
March 6, 2017, the Supreme Court decided Beckles v.
United States, holding 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. 40].
March 27, 2017, the United States filed the instant motion to
dismiss Petitioner's Johnson-based challenge to
his base offense level enhancement in light of
Beckles [Doc. 41]. Petitioner has not filed a
response and the time for doing so has now passed [Doc. 40].
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”).
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 defined in an almost
identical manner as “violent felony” under the
ACCA. See U.S. Sentencing Manual §4B1.2(a)
(adopting identical use-of-force and residual clauses and
similar enumerated-offense clause).
March 31, 2017, FDSET filed a motion asking to withdraw as
appointed counsel under the Standing Order in light of
Beckles [Doc. 42 (explaining that she cannot further
pursue a motion to vacate under Johnson according to
the limited appointment authorization provided by the
RESOLUTION OF NON-DISPOSITIVE MOTION
Beckles forecloses any possibility of
Johnson-based relief, the request to withdraw [Doc.
42] will be GRANTED and counsel will be relieved of her
duties under the Standing Order.
DISPOSITIVE MOTION AND § 2255 PETITION
extent that Petitioner challenges his base offense level
based on Johnson, that argument fails because the
Guidelines are not subject to void for vagueness analysis.
Beckles, 137 S.Ct. 894. Because Beckles
forecloses Johnson-based 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 will be granted.
foregoing reasons 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. 41] will be GRANTED and
Petitioner's § 2255 petition [Doc. 33] will be
DENIED and DISMISSED WITH PREJUDICE. FDSET's motion to
withdraw [Doc. 42] will be GRANTED. This 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).