United States District Court, E.D. Tennessee
A. VARLAN UNITED STATES DISTRICT JUDGE.
inmate John Benell Thomas has filed a motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255.
Respondent has filed a response in opposition to the motion.
Having considered the pleadings and the record, along with
the relevant law, the Court finds that it is unnecessary to
hold an evidentiary hearing,  and Thomas' § 2255
motion will be denied.
BACKGROUND FACTS AND PROCEDURAL HISTORY
October of 2007, Thomas pleaded guilty and was convicted of
possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g), possessing with intent to distribute marijuana
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(D), and possessing a firearm in furtherance of a drug
trafficking offense in violation of 18 U.S.C. § 924(c)
[Doc. 20 in No. 3:07-CR-73]. Based on his prior Tennessee
convictions for aggravated assault and drug-trafficking
offenses, Thomas was classified as both a career offender and
an armed career criminal, with a corresponding Sentencing
Guidelines range of 262 to 327 months' imprisonment [Doc.
41 ¶¶ 38-40, 44, 46, 51, and 75 in No. 3:07-CR-73].
Before sentencing, the United States filed a motion for a
downward departure [Doc. 27 in No. 3:07-CR-73]. The Court
ultimately sentenced Thomas to an aggregate term of 156
months' imprisonment [Doc. 31 in No. 3:07-CR-73]. Thomas
did not appeal.
about June 21, 2016, Thomas filed this pro se § 2255
motion for a lesser sentence in light of the holding of
Johnson v. United States, which invalidated the
residual clause of the Armed Career Criminal Act
(“ACCA”). Johnson v. United States, 135
S.Ct. 2551, 2563 (2015) [Doc. 1]. The Court ordered the
Government to respond, and after filing two motions for
extensions of time, the Government filed its response on
March 22, 2018 [Doc. 4]. This matter is ripe for
defendant has been convicted and exhausted his appeal rights,
a court may presume that “he stands fairly and finally
convicted.” United States v. Frady, 456 U.S.
152, 164 (1982). A court may grant relief under 28 U.S.C.
§ 2255, but the statute “does not encompass all
claimed errors in conviction and sentencing.”
United States v. Addonizio, 442 U.S. 178, 185
(1979). Rather, collateral attack limits a movant's
allegations to those of constitutional or jurisdictional
magnitude, or those containing factual or legal errors
“so fundamental as to render the entire proceeding
invalid.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (citation omitted); see
also 28 U.S.C. § 2255(a).
Section 924 conviction
residual clause of the ACCA struck down as unconstitutionally
vague in Johnson defined a “violent
felony” as “any crime punishable by imprisonment
for a term exceeding one year” that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii); Johnson, 135 S.Ct. at 2563. Thomas
claims that the reasoning of Johnson also
invalidated the residual clause in § 924(c)(3)(B)'s
definition of a crime of violence, which requires vacatur of
his § 924(c) conviction [Doc. 1 p. 4].
18 U.S.C. § 924(c), it is unlawful to use or carry a
firearm during and in relation to a “crime of violence
or drug trafficking crime, ” or to possess a firearm
“in furtherance of any such crime.” 18 U.S.C.
§ 924(c)(1)(A). A “crime of violence” under
§ 924(c) is “an offense that is a felony
and” either (1) “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another” (the
“use-of-force clause”); or (2) “by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense” (the “residual
clause”). 18 U.S.C. § 924(c)(3).
Sixth Circuit has expressly held that Johnson's
reasoning does not invalidate the differently-worded residual
clause of § 924(c)(3)(B). United States v.
Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016).
Regardless, even if Johnson's holding did extend
to § 924(c)(3)(B)'s residual clause, Thomas was
convicted of possessing a firearm in furtherance of a
drug-trafficking offense, not a crime of violence [Doc. 31 in
No. 3:07-CR-73]. Johnson “has no
bearing” on the classification of drug -trafficking
offenses. United States v. Darling, 619 Fed.Appx.
877, 880 n.5 (11th Cir. 2015). Accordingly, Thomas'
§ 924(c) conviction and sentence remain lawful.
next claims that his career-offender enhancement was
necessarily based upon Guideline § 4B1.2's residual
clause, which he asserts was invalidated by Johnson
[Doc. 1 p. 5]. However, the Supreme Court has explicitly held
that, because the Guidelines are not subject to vagueness
challenges, § 4B1.2's residual clause is not void
for vagueness. Beckles v. United States, 137 S.Ct.
886, 894-95 (2017). Additionally, Thomas' career-offender
classification was based upon two prior convictions for
selling cocaine, both of which qualified not as crimes of
violence, but as controlled-substance ...