United States District Court, M.D. Tennessee, Nashville Division
A.TRAUGER United States District Judge.
the court is Tanner Patterson' Motion to Vacate, Set
Aside, or Correct Sentence in Accordance with 28 U.S.C.
§ 2255 (Doc. No. 1), seeking to vacate the sentence
entered upon his 2013 criminal conviction in United
States v. Lunsford et al., No. 3:12-cr-00094-2 (M.D.
Tenn. May 1, 2013) (Revised Judgment, Doc. No. 59) (Haynes,
Patterson argues, based on Johnson v. United States,
135 S.Ct. 2551 (2015), that his sentence was unlawfully
enhanced by the application of 18 U.S.C. § 924(c),
because it required a finding that the defendant committed a
“crime of violence” under the “residual
clause” of § 924(c), which, he claims, is
unconstitutionally vague. (Doc. No. 1, at 1.) For the reasons
set forth below, Patterson's motion will be denied.
16, 2013, Patterson and his co-defendant, Devonte Lunsford,
were indicted on charges of (1) robbery of a federally
insured bank “by force and violence, and by
intimidation” and, in committing this offense,
“assault[ing] the employees of [the bank] and [putting]
said employees' lives in jeopardy by the use of a
dangerous weapon, ” in violation of 18 U.S.C.
§§ 2 and 2113(a), (d) (Count One); and (2)
knowingly using, carrying and brandishing a firearm during
and in relation to a crime of violence, specifically armed
bank robbery, in violation of 18 U.S.C. §§
924(c)(1)(A) and 2 (Count Three). (Crim. Doc. No. 18.)
pleaded guilty to both charges, pursuant to a Plea Agreement,
in January 2013. According to the Plea Agreement, Patterson
understood that conviction on the charge of using a dangerous
weapon during and in relation to a crime of violence carried
a mandatory minimum consecutive sentence of seven years.
(Doc. No. 54, at 8.) The Plea Agreement included an agreement
to a total sentence of 135 months (51 months on Count One and
84 months on Count Three) under Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure. (Id. at 13.)
the court's acceptance of his plea, Patterson was
sentenced on April 19, 2013 to the agreed-upon sentence of
135 months. The Revised Judgment (correcting a typographical
error in the original Judgment) was entered on May 1, 2013.
(Doc. No. 59.) Patterson did not appeal his conviction or
§ 2255 motion was filed, through counsel, on August 12,
2016. (Doc. No. 1.) The government responded (Doc. No. 4),
and the movant, through counsel, filed a Reply (Doc. No. 5).
Following the retirement of Judge Haynes, the case was
reassigned to the undersigned.
movant brings this action under 28 U.S.C. § 2255.
Section 2255 provides a statutory mechanism for challenging
the imposition of a federal sentence:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). In order to obtain relief under
§ 2255, a petitioner “‘must demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.'” Humphress v.
United States, 398 F.3d 855, 858 (6th Cir. 2005)
(quoting Griffin v. United States, 330 F.3d 733, 736
(6th Cir. 2003)). A motion under § 2255 is ordinarily
subject to a one-year statute of limitations, running from
the date the underlying conviction became final. 28 U.S.C.
law imposes a mandatory minimum sentence upon any person who,
“during and in relation to any crime of violence or
drug trafficking crime . . ., uses or carries a firearm, or
who, in furtherance of any such crime, possesses a
firearm.” 18 U.S.C. § 924(c)(1)(A). Section
924(c)(3) defines “crime of violence” as an
offense that is a felony and either (A) “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another”; or
(B) “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.”
Id. § 924(c)(3)(A), (B). Subsection (A) is
known as the “elements” or
“use-of-force” clause, and subsection (B) is
referred to as the “residual” clause.
argues that his conviction on Count Three of the Indictment
and the increased sentence imposed under § 924(c) rely
on a definition of “crime of violence” that is
materially indistinguishable from the definition of
“violent felony” in the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B)(ii), which the Supreme Court struck down
as unconstitutionally vague in Johnson, 135 S.Ct. at
2563. He contends ...