United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE
the Court is the government's 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.
613]. Petitioner filed the petition on June 23, 2016 [Docs.
575, 580, 614]. In it, he challenges his 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sentence is no longer valid because the Guidelines residual
provision is equally vague)].
2011, Petitioner was convicted of conspiring to distribute
and possession with intent to distribute 500 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 846 and
841(a)(1), (b)(1)(B), and possessing a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) [Docs. 179,
195, 465]. Based on the quantity of drugs stipulated in his
plea agreement, Petitioner faced a statutory mandatory
minimum sentence of ten years' incarceration for the drug
offense. Further, because Petitioner had two prior California
convictions-possession of cocaine for resale and threatening
a witness or victim, the United States Probation Office
deemed him a career offender with an advisory Guideline range
of 262 to 327 months' incarceration [Presentence
Investigation Report (PSR) ¶¶ 98, 100, 125].
Consistent with the above, this Court sentenced Petitioner to
a 262-month term for the drug offense and a concurrent
120-month term for the gun offense, yielding an effective
aggregate sentence of 262 months' incarceration [Doc.
465]. Petitioner filed a direct appeal of his conviction and
sentence, but the Sixth Circuit dismissed that appeal because
of the knowing and voluntary waiver contained in his plea
agreement [Doc. 488].
than one year later-on April 8, 2013, Petitioner filed a
motion to vacate, set aside, or correct his sentence under
§ 2255 [Doc. 498]. This Court denied that petition on
the merits in a Memorandum Opinion and Judgment Order entered
on February 24, 2016 [Docs. 548, 549]. The Supreme Court
decided Johnson on June 26, 2015. On June 23, 2016,
Petitioner filed the instant motion challenging his career
offender designation based on that decision [Doc. 575].
Petitioner filed a pro se supplement in support of the
Johnson-based claim on July 20, 2016 [Doc. 580].
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 28, 2017, the United States filed the
instant motion to dismiss Petitioner's
Johnson-based challenge in light of Beckles
[Doc. 613]. In response, Petitioner submitted: (1) a motion
for “clarification” explaining that he was also
challenging his enhancement under “§ 851;”
and (2) a reply arguing that he was still entitled to relief
because his prior conviction for threatening a witness or
victim did not involve violent force [Docs. 614, 615].
PETITION FOR POST-CONVICTION RELIEF
supplemented, the petition contains two discernable grounds
for relief. In the first, Petitioner argues that
Johnson invalidated the identically worded residual
provision in Section 4B1.2, that his prior California
convictions for possessing cocaine for resale and threatening
a witness or victim only qualified as crimes of violence
under that provision, and that he lacks sufficient predicates
for career offender enhancement [Docs. 575, 580, 615]. In the
second, he claims that his sentence was improperly enhanced
under § 851 [Doc. 614 (“I was enhanced under
[§] 851, and the violence predicate [was] intimidating a
witness.”)]. Both theories fail.
Challenge to Career Offender Designation Based on
extent that Petitioner argues that Johnson
invalidated the Guidelines residual clause and that his prior
California convictions for possessing cocaine for resale and
threatening a witness or victim cannot be categorized as
crimes of violence without that provision, that argument
fails because the United States Sentencing Guidelines are
“not amenable to vagueness challenges.”
Beckles, 137 S.Ct. at 894. Because Johnson
did not have an impact on Petitioner's status as a career
offender, it cannot serve as a basis for granting relief.
Petitioner's request for relief because “the
element of force was not present in his predicate of
intimidating a witness” fails because viability of the
residual clause makes satisfaction of the
use-of-physical-force clause unnecessary. Both of
Petitioner's prior California convictions remain
predicate offenses under Section 4B1.2.
Improper Enhancement Under § 851
extent that Petitioner challenges his sentence based on
improper or insufficient notice of enhancement under 21
U.S.C. § 851, that claim fails because no such notice
was required. Designation as a career offender is distinct
from, and in no way requires, pre-enhancement notice under 21
U.S.C. 851(a)(1). Stated another way, a defendant may be
subject to an enhanced statutory penalty based on a §
851(a)(1) notice even if he is not a career offender;
conversely, a defendant may be a career offender under the
guidelines even if no § 851(a)(1) enhancement is ever
filed. To the extent that a discrepancy actually exists, it
does not justify collateral relief.
foregoing reasons, the United States's motion to deny and
dismiss [Doc. 613] will be GRANTED and Petitioner's
supplemented petition [Docs. 575, 580, 614] will be DENIED
and DISMISSED WITH PREJUDICE. 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 ...