United States District Court, E.D. Tennessee
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
the Court is the United States' motion to deny and
dismiss Petitioner's successive motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 45]. Petitioner submitted the petition on February
16, 2017 [Doc. 42]. 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 (ACCA), 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(suggesting that his sentence is no longer valid because the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
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. 44].
March 28, 2017, the United States filed the instant motion to
dismiss Petitioner's Johnson-based challenge to
his base offense level in light of Beckles [Doc.
45]. Petitioner has not filed a response and the time for
doing so has now passed [Doc. 44]. 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.
45] will be GRANTED and petition [Doc. 42] will be DENIED and
DISMISSED WITH PREJUDICE.
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 ...