United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. 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. 45]. Petitioner submitted the petition on May 16, 2016
[Doc. 40]. 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sentence is no longer valid because the Guidelines residual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 vague)].
2012, Petitioner pled guilty to possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g), and
possessing a stolen firearm, in violation of 18 U.S.C. §
922(j) [Doc. 2 (indictment); Doc. 27 (notice of intent to
plead guilty); Doc. 28 (factual basis)]. Based on prior
Tennessee convictions for aggravated burglary, the United
States Probation Office deemed Petitioner to be an armed
career criminal subject to that provision's fifteen-year
mandatory minimum [Presentence Investigation Report (PSR)
¶¶ 20, 27, 28, 52]. Petitioner objected to the ACCA
classification [Doc. 35] and this Court sustained that
objection, leaving Petitioner subject to the ten year
statutory maximum applicable to non-ACCA offenders under 18
U.S.C. § 924(a)(2). In accordance with that
determination, on August 14, 2012, this Court sentenced
Petitioner to 120 months' incarceration and three
years' supervised release [Doc. 37]. Petitioner did not
appeal and his conviction became final on August 28, 2012.
See, e.g., Sanchez-Castellano v. United
States, 358 F.3d 424, 428 (6th Cir. 2004) (explaining
that an unappealed judgment of conviction becomes final when
the fourteen-day period for filing a direct appeal has
Supreme Court decided Johnson on June 26, 2015. Less
than one year later-on May 16, 2016, Petitioner filed the
instant petition challenging his base offense level based on
that decision [Doc. 40]. The United States responded in
opposition to the § 2255 motion on June 20, 2016 [Doc.
43]; Petitioner replied to that response on July 5, 2016
March 6, 2017, the Supreme Court decided Beckles and
held in that decision that the United States Sentencing
Guidelines are “not amenable to vagueness
challenges.” Id. at 894. Shortly thereafter-on
March 30, 2017, the United States filed the instant motion to
dismiss Petitioner's collateral challenge to his career
offender designation in light of Beckles [Doc. 45].
MOTION TO DENY AND DISMISS WITH PREJUDICE
United States filed the motion to deny and dismiss
Petitioner's collateral in light of Beckles on
March 30, 2016 [Doc. 45]. 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 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”). The
unopposed motion to dismiss will be granted.
Beckles forecloses Johnson-based collateral
relief from Guideline enhancements and because this Court
interprets Petitioner's failure to respond to the request
for dismissal as a waiver of opposition, the United
States' unopposed motion to deny and dismiss [Doc. 45]
will be GRANTED and Petitioner's § 2255 motion [Doc.
40] 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 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