United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
Petitioner, Jeffrey Traywick, has filed, through counsel, a
motion to vacate, set aside, or correct his 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 2013, Traywick pleaded guilty in the United States
District Court for the Western District of Tennessee to bank
robbery in violation of 18 U.S.C. § 2113. (United
States v. Traywick, No. 1:13-cr-10078-JDB-1 (“No.
13-cr-10078”), D.E. 19.) He was determined to be
subject to an increase in his offense level under the career
offender provision, § 4B1.1, of the United States
Sentencing Commission Guidelines Manual
“U.S.S.G.”). (See Presentence Report
(“PSR”) ¶ 21.) His career offender status
was based on a Missouri conviction for second-degree assault
and a Tennessee conviction for aggravated burglary. (PSR
¶¶ 44, 51.)
January 2014, the Court imposed a sentence of 140 months of
incarceration and two years of supervised release. (No.
13-cr-10078, D.E. 27.) Traywick did not take a direct appeal.
inmate subsequently filed the Petition, challenging the use
of his Tennessee aggravated burglary conviction as a career
offender predicate after Johnson v. United States,
135 S.Ct. 2551 (2015), and United States v. Stitt,
860 F.3d 854 (6th Cir. 2017) (en banc), rev'd United
States v. Stitt, 139 S.Ct. 399 (2018). He argues that
the conviction does not qualify as a crime of violence under
either the residual clause or the enumerated offenses clause
of the career offender provision.
defendant is a career offender if (1) [he] was at least
eighteen years old at the time of the instant offense, (2)
the instant offense is either a crime of violence or a
controlled-substance offense, and (3) ‘the defendant
has at least two prior felony convictions of either a crime
of violence or a controlled substance offense.'”
United States v. Alexander, 686 Fed.Appx. 326, 327
(6th Cir. 2017) (per curiam) (quoting U.S.S.G. §
4B1.1(a)). At the time of Traywick's sentencing, the
Guidelines defined a “crime of violence” as any
crime punishable by over one year of imprisonment that:
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
U.S.S.G. § 4B1.2(a).
provision set forth in subsection (1) is known as the
“elements clause, ” and the first part of
subsection (2) is referred to as the “enumerated
offenses clause.” United States v. Morris, 885
F.3d 405, 409 (6th Cir.), cert. denied, 139 S.Ct.
269 (2018). The language “or otherwise involves conduct
that presents a serious potential risk of physical injury to
another” is the “residual clause.”
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), contains similarly-worded clauses.
See 18 U.S.C. § 924(e)(2)(B). In
Johnson, the United States Supreme Court held that
the ACCA's residual clause is unconstitutionally void for
vagueness. Johnson, 135 S.Ct. at 2557. Therefore, an
enhanced sentence under that clause violates due process as
guaranteed by the Fifth Amendment. Id. at 2556-57.
case, Petitioner argues that Johnson's ruling
invalidated the residual clause of the Guidelines' career
offender provision, such that his Tennessee aggravated
burglary is no longer a predicate crime of violence. The
argument is devoid of merit. On March 6, 2017, the Supreme
Court refused to extend Johnson's reasoning to
the Guidelines' career offender provisions, explaining
that “[u]nlike the ACCA, . . . the advisory Guidelines
do not fix the permissible range of sentences.”
Beckles v. United States, 137 S.Ct. 886, 892 (2017).
“[T]he Guidelines, ” therefore, “are not
subject to a vagueness challenge under the Due Process
the residual clause in the career offender provision were
unconstitutionally vague, Petitioner still would not be
entitled to relief. His argument that Tennessee aggravated
burglary is not categorically a crime of violence under the
enumerated offenses clause after the Sixth Circuit's
decision in Stitt lacks merit. In an en
banc decision, the appellate court in Stitt
held that Tennessee aggravated burglary does not qualify as
an enumerated violent felony under the ACCA because it is
broader than the generic definition of burglary. See
Stitt, 860 F.3d at 857. However, after Traywick filed
the Petition, the United States Supreme Court reversed the
Sixth Circuit's ruling in Stitt, holding instead
that Tennessee aggravated burglary “falls within the
scope of generic burglary's definition.”
Stitt, 139 S.Ct. at 406. Because the inmate remains
a career offender, the Petition is DENIED.
§ 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