United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 MOTION, DENYING CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
DANIEL BREEN UNITED STATES DISTRICT JUDGE
the Court is the pro se motion of Petitioner, Emma Hilliard,
to vacate, set aside, or correct her sentence (the
“Petition”), pursuant to 28 U.S.C. § 2255.
(Docket Entry (“D.E.”) 1.).For the reasons
that follow, the Petition is DENIED
October 2010, Hilliard pleaded guilty in the United States
District Court for the Western District of Tennessee to
conspiracy to possess cocaine with the intent to distribute
in violation of 21 U.S.C. §§ 841 and 846.
(United States v. Hilliard, No. 1:10-cr-10033-JDB-1
(“No. 10-cr-10033”), D.E. 27.) Prior to
sentencing, the United States Probation Office submitted a
presentence report (“PSR”) setting forth the
calculation of the advisory sentencing range under the United
States Sentencing Commission Guidelines Manual
(“Guidelines” or “U.S.S.G.”). (PSR at
5-6.) An adjusted offense level of twenty was assigned, which
was increased to thirty-two under the career offender
provision, U.S.S.G. § 4B1.1. (Id. at
¶¶ 33-34.) The enhancement was based on
Hilliard's three Tennessee drug offenses. (Id.
at ¶¶ 46-47, 49.) A three-point reduction for
acceptance of responsibility was applied. (Id. at
¶ 35.) Based on a total offense level of twenty-nine and
a criminal history category of VI, the guideline imprisonment
range was calculated to be 151-188 months. (Id. at
¶ 78.) The Court imposed a sentence of 151 months of
incarceration and three years of supervised release. (No.
10-cr-10033, D.E. 45.)
inmate subsequently filed the Petition, challenging her
sentence based on the United States Supreme Court's
ruling in Johnson v. United States, 135 S.Ct. 2551
(2015), 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. She insists that Johnson renders
unconstitutional her designation as a career offender under
the Guidelines. The argument fails.
the ACCA, a person who is convicted of being a felon in
possession of a firearm and who “has three previous
convictions . . . for a violent felony or a serious drug
offense . . .committed on occasions different from one
another . . . shall be . . . imprisoned not less than fifteen
years.” 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 . . . (i) has as an element the use,
attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.
8 U.S.C. § 924(e)(2)(B). The phrase “otherwise
involves conduct that presents a serious potential risk of
physical injury to another” is known as the
“residual clause.” Johnson, 135 S.Ct. at
Johnson, the Supreme Court held that the ACCA's
residual clause is unconstitutionally void for vagueness.
Id. at 2257. Therefore, an enhanced sentence under
that clause violates due process as guaranteed by the Fifth
Amendment. Id. at 2556-57.
Petitioner is not entitled to relief under Johnson.
On March 6, 2017, the Supreme Court refused to extend
Johnson's reasoning to the Guidelines'
career offender provisions. See Beckles v. United
States, 137 S.Ct. 886, 892 (2017). Therein, 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.
inmate's sole claim is without merit, the Petition is
§ 2255 petitioner may not proceed on appeal unless a
district or circuit judge issues a certificate of
appealability (“COA”). 28 U.S.C. §
2253(c)(1); Fed. R. App. P. 22(b)(1). A COA may issue only if
the petitioner has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2)-(3). A
substantial showing is made when the petitioner demonstrates
that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were ‘adequate to deserve encouragement to proceed
further.'” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). “If the petition was denied on
procedural grounds, the petitioner must show, ‘at
least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.'” Dufresne v. Palmer,
876 F.3d 248, 253 (6th Cir. 2017) (per curiam) (quoting
Slack, 529 U.S. at 484).
case, reasonable jurists would not debate the correctness of
the Court's decision to deny the Petition. Because any
appeal by Petitioner does ...