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Hartness v. United States

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

April 25, 2017

KEITH HARTNESS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

         Before the Court is the United States' motion to deny and dismiss Petitioner's supplemented motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 38]. Petitioner submitted the petition on June 19, 2014 [Doc. 30], and supplemented the same on June 14, 2016 [Doc. 33]. [1] In its supplemented form, the petition challenges Petitioner's enhancement under Section 4B1.1 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 (suggesting that his sentence is no longer valid because the residual provision in Section 4B1.2 is equally vague)].

         On 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) noting the holding in Beckles (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. 37].

         On 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. 38]. Petitioner has not filed a response, and the time for doing so has now passed [Doc. 37]. 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”).

         I. PETITION FOR POST-CONVICTION RELIEF

         A. Challenge to Career Offender Designation Based on Johnson

         To the extent that Petitioner argues that Johnson invalidated the Guideline residual clause and that, without that clause, Petitioner's prior convictions for aggravated burglary cannot be categorized as crimes of violence, that argument fails because the United States Sentencing Guidelines are “not amenable to vagueness challenges.” Beckles, 137 S.Ct. at 894. Thus, Johnson did not have any impact on Petitioner's status as a career offender.

         B. Challenge to Career Offender Designation Based on Descamps

         To the extent that Petitioner argues that his prior convictions for aggravated burglary cannot qualify as predicate crimes of violence regardless of whether or not the Guideline residual clause remains in effect, that argument fails because every version of aggravated burglary that might not fall within the generic definition of burglary, i.e., the enumerated-offense clause, categorically qualifies as a career offender predicate under the Guidelines residual clause.

         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 Court went on to make clear, however, that its decision did “not call into question . . . the remainder of the [ACCA's] definition of violent felony, ” i.e., the use-of-physical-force and enumerated-offense clauses. Id.

         Section 4B1.1 classifies a defendant as a career offender if (1) he or she was at least eighteen years old at the time the defendant committed the instant offense; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) he or she 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). Only Petitioner's satisfaction of the third prong-possession of two qualifying predicate convictions-is disputed [Docs. 30, 33]. Unlike the ACCA, the Guidelines are not subject to void for vagueness analysis and, as a result, the residual clause in Section 4B1.2 remained in effect after Johnson. Beckles, 137 S.Ct. at 894.

         To determine whether a particular offense qualifies as a violent felony under any of the prongs of the above definition, courts must first identify the precise crime of conviction. Descamps v. United States, 133 S.Ct. 2276, 2285 (2013). They do so by employing a “categorical approach, ” under which they look “only to the statutory definitions-elements-of a defendant's prior offense, and not to the particular facts underlying [each individual] conviction[].” Id. at 2283. When the conviction involves violation of a “divisible” statute-one which comprises multiple, alternative versions of the crime-courts resort to the “modified categorical approach” under which they “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.” Id. at 2281.

         At all relevant times, Tennessee defined aggravated burglary as “burglary of a habitation as defined in §§ 39-14-401 and 39-14-402.” Tenn. Code Ann. § 39-14-403(a). The statute incorporates two definitions: burglary as set forth in Tennessee Code Annotated § 39-14-402; and “habitation” as set forth in Tennessee Code Annotated § 39-14-401. The former provides that a person commits burglary when, “without, the effective consent of the property owner, ” he or she:

(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a ...

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