United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING RELIEF UNDER JOHNSON V. UNITED STATES
AND DIRECTING RESPONDENT TO RESPOND TO REMAINING
DANIEL BREEN UNITED STATES DISTRICT JUDGE
2016, Petitioner, Robert Troy Anderson, filed a pro
se motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (“Petition”). (Docket
Entry (“D.E.”) 1.) The Petition sets forth three
claims of attorney ineffective assistance, and one claim
under Johnson v. United States, 135 S.Ct. 2551
(2015). (Id. at PageID 4-5.) For the reasons that
follow, the Johnson claim is DENIED, and Respondent,
United States of America, is DIRECTED to respond to the
March 2015, a federal grand jury returned a four-count
indictment against Petitioner, charging him with various
controlled substance offenses in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and 18 U.S.C. § 2. (Case
Number (“No.”) 1:15-cr-10018-JDB-2, D.E. 2 at
PageID 6-9.) He subsequently entered a plea of guilty to
Count 1, (id., D.E. 163), and the remaining counts
were dismissed, (id., D.E. 290).
was determined to be subject to an enhanced sentence as a
career offender under § 4B1.1 of the United States
Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”), based on three prior felony
controlled substance convictions under Tennessee
(Presentence Report ¶¶ 25, 39, 42, 44.) The Court
sentenced him to 151 months' imprisonment and three years
of supervised release. (No. 15-cr-10018, D.E. 290.)
23, 2016, the inmate filed his Petition, which, as noted,
asserts four claims for relief, including a claim under
Johnson. (D.E. 1 at PageID 4-5.)
prisoner seeking to vacate his sentence under § 2255
“must allege either: ‘(1) an error of
constitutional magnitude; (2) a sentence imposed outside the
statutory limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.'” Short v. United States, 471
F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)).
challenges his sentence based on the Supreme Court's
ruling in Johnson that the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), is unconstitutionally void for vagueness.
See Johnson, 135 S.Ct. at 2557. He argues that
Johnson renders unconstitutional his designation as
a career offender under § 4B1.1 of the Guidelines.
argument fails. Under § 4B1.1, a defendant is a career
offender if, among other things, he “has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. §
4B1.1(a). Under the version of the Guidelines in effect at
the time of Petitioner's sentencing, the definition of
“crime of violence” contained a residual clause
similar to the ACCA's residual clause. See
U.S.S.G. § 4B1.2(a)(2). There was, however, no residual
clause in the definition of “controlled substance
offense.” See U.S.S.G. § 4B1.2(b). As
noted, Anderson was found to meet the criteria of a career
offender because he had at least two prior felony controlled
substance convictions. Thus, the residual clause contained in
the “crime of violence” definition was not
implicated in his case.
addition, even if the Guidelines' residual clause were
relevant to Petitioner's career offender status, the
Supreme Court in 2007 refused to extend
Johnson's reasoning to the Guidelines'
career offender provisions. See Beckles v. United
States, 137 S.Ct. 886, 892 (2017). The Court explained
that, “[u]nlike the ACCA, . . . the advisory Guidelines
do not fix the permissible range of sentences.”
Id. “[T]he Guidelines, ” therefore,
“are not subject to a vagueness challenge under the Due
Process Clause.” Id.
Johnson claim is DENIED.
is ORDERED to file a response to the remaining claims within
twenty-eight (28) days from the date of this order. See
Rules Governing Section 2255 Proceedings for the United
States District Courts (“Habeas Rules”),
may, if he chooses, submit a reply to Respondent's answer
or response within twenty-eight (28) days of service.
See Habeas Rule 5(d). Petitioner may request an
extension of time to ...