United States District Court, M.D. Tennessee, Nashville Division
ROBERT E. BUFFAR, Movant,
UNITED STATES OF AMERICA, Respondent.
A. TRAUGER UNITED STATES DISTRICT JUDGE
the court is Robert Buffar's Amended Motion to Vacate,
Set Aside, or Correct Sentence in Accordance with 28 U.S.C.
§ 2255. (Doc. No. 3.) Buffar seeks to vacate the
sentence entered upon his 2005 criminal conviction in
United States v. Buffar, No. 3:05-cr-00086 (M.D.
Tenn. Sept. 23, 2005) (Am. Judgment, Doc. No. 25),
under Johnson v. United States, 135 S.Ct. 2551
(2015), which invalidated the so-called “residual
clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). (Doc. No. 1.)
For the reasons set forth herein, the motion will be denied.
September 2005, Judge Todd Campbell (retired), accepted
Buffar's guilty plea to the charges in the Indictment of
(1) being a previously convicted felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924, and (2) possession of a firearm with an altered or
obliterated serial number, in violation of 18 U.S.C. §
922(k). (Crim. Doc. Nos. 20, 21.) Based on his having at
least three prior violent felony convictions, Buffar was
sentenced to the ACCA's mandatory minimum of 180 months
on Count 1, to run concurrently with a 60-month sentence on
Count 2. (Crim. Doc. No. 21.) There is no indication in the
record that Buffar objected to sentencing under the ACCA. No.
appeal was filed.
ACCA predicate felonies identified in the Presentence Report
included Tennessee convictions for (1) aggravated assault
(2000); (2) voluntary manslaughter (1991); and (3) assault
with intent to commit murder with bodily injury (1986).
Following the filing of Buffar's Motion to Vacate, the
Probation Office issued a Supplement to the Presentence
Report, in which it purported to agree with Buffar that, in
light of Johnson, the Voluntary Manslaughter
conviction no longer qualified as a predicate ACCA offense.
However, the Supplement identified additional potentially
qualifying convictions, including Tennessee assault with
intent to commit first degree murder (1970) and two
convictions for third degree burglary (1970). (See
Doc. No. 4. at 2.)
filed his Motion to Vacate, through counsel, on June 7, 2016,
citing Johnson. He filed an Amended Motion on June
16, 2016 and a Supplemental Brief on August 15, 2016 (Doc.
Nos. 3, 4), arguing that none of his prior convictions
qualifies as a predicate offense under the now-invalidated
residual clause of the ACCA. (Doc. No. 1.) The government
responded (Doc. No. 11), arguing that Johnson did
not affect Buffar's sentencing under the ACCA, because at
least three of the previous convictions qualify as crimes of
violence under the ACCA's use-of-force clause. The
movant, through counsel, filed a Reply. (Doc. No. 12.)
forth below, the court finds that Buffar's Tennessee
convictions for (1) aggravated assault (2000), (2) voluntary
manslaughter (1991), (3) assault with intent to commit
first-degree murder (1970), and (4) assault with intent to
commit murder with bodily injury (1986) all qualify as
violent felonies under the ACCA.
28 U.S.C. § 2255
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.
The ACCA and Johnson v. United States
pleaded guilty to a violation of 18 U.S.C. § 922(g)(1),
which makes it unlawful for a previously convicted felon to
possess any firearm or ammunition that has been transported
in interstate commerce. The ACCA, 18 U.S.C. § 924(e),
mandates a minimum sentence of fifteen years for any person
convicted under § 922(g)(1) who has “three
previous convictions . . . for a violent felony or a serious
drug offense.” The predicate offenses at issue here
clearly do not constitute drug offenses. The question is
whether they qualify as violent felonies.
Section 924(e)(2)(B) 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 . .
first prong of that definition, § 924(e)(2)(B)(i), is
known as the “use-of-force” or
“elements” clause. Davis v. United
States, 900 F.3d 733, 735 (6th Cir. 2018), cert.
denied, 139 S.Ct. 1374 (2019); United States v.
Patterson, 853 F.3d 298, 302 (6th Cir. 2017), cert.
denied, 138 S.Ct. 273 (2017). The second prong, §
924(e)(2)(B)(ii), is itself split into two clauses. The first
part is known as the “enumerated-offense clause”;
the second part (“conduct that presents a serious
potential risk of physical injury to another”) is known
as the “residual clause.” Id.
Johnson, the Supreme Court invalidated the residual
clause as unconstitutionally vague under the Due Process
Clause of the Fifth Amendment. Johnson, 135 S.Ct. at
2563. The Supreme Court subsequently recognized that
Johnson had announced a new substantive rule that
has retroactive effect in cases on collateral review,
Welch v. United States, 136 S.Ct. 1257, 1265 (2016),
thus authorizing this otherwise untimely § 2255 motion.
invalidation of the residual clause, the other parts of the
ACCA remain valid and enforceable. Thus, if a defendant was
previously found to have the requisite number of predicate
offenses under the ACCA, but the prior offenses were deemed
to qualify only under the residual clause-or the court and
the parties merely assumed that the offenses qualified
without analyzing under which clause of the ACCA-courts faced
with a Johnson motion are called upon to consider
whether the underlying offenses qualify under the
use-of-force or enumerated-offense clause instead. Although
these provisions remain valid, the courts have continued to
struggle with the definitions contained there as well.
apply a “categorical approach” to determine
whether a prior conviction qualifies as a “violent
felony” under the use-of-force clause See,
e.g., United States v. Mitchell, 743 F.3d 1054,
1058 (6th Cir. 2014). That means that the courts “look
only to the fact of conviction and the statutory definition
of the prior offense and not the particular facts underlying
that conviction.” Id. (citing James v.
United States, 550 U.S. 192, 202 (2007)). “This
approach avoid[s] the practical difficulties and potential
unfairness of permitting a sentencing court to relitigate
facts and delve into the details of a prior
conviction.” Id. (internal quotation marks and
citation omitted). If the state law offense categorically