United States District Court, E.D. Tennessee
RODRIQUEZ O. MCGLOCTON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
L. COLLIER 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. 32]. Petitioner filed the petition on June 20, 2016
[Doc. 26]. 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 (suggesting that his sentence is no
longer valid because the Guidelines residual provision is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). Shortly
thereafter-on March 30, 2017, the United States filed the
instant motion to dismiss Petitioner's
Johnson-based challenge in light of Beckles
[Doc. 32]. Petitioner has not filed a response, and the time
for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. 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
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.
32] will be GRANTED and the petition [Doc.
26] will be DENIED and DISMISSED
addition to the motion to dismiss, this Court is in
possession of a request for an extension of time filed by the
United States on August 10, 2016 [Doc. 29]. Before this Court
could rule on that request, however, the United States'
submitted the delayed response [Doc. 31]. For good cause
shown, the United States' request [Doc. 29] will be
GRANTED nunc pro tunc.
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).
appropriate order will enter.
 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). USSG §
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. USSG § 2K2.1(a)(4). Offenders with two such
convictions face a base offense level of twenty-four. USSG
§ 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.” USSG §
4B1.2(b). “Crime of violence” is ...