United States District Court, M.D. Tennessee, Nashville Division
ALETAATRAUGER, UNITED STATES DISTRICT JUDGE
the court is Mandel Martin's Motion to Vacate, Set Aside,
or Correct Sentence in Accordance with 28 U.S.C. § 2255.
(Doc. No. 1.) Martin seeks to vacate the sentence entered
upon his 2005 criminal conviction in United States v.
Martin, No. 3:03-cr-00044 (M.D. Tenn. Aug. 4, 2005),
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.
Indictment in the underlying criminal case charges that
Martin committed two armed bank robberies on separate dates
in 2003 about a month apart, both involving the use and
display of a firearm, in violation of 18 U.S.C. §
2113(a) and (d). (Crim. Doc. No. 1.) Martin pleaded guilty to
both charges in 2005 and was sentenced on August 4, 2005 to
188 months on each count, to run concurrently. (Crim. Doc.
Nos. 52, 58.).
to this conviction, Martin had pleaded guilty to a charge of
federal armed bank robbery in the Eastern District of
Tennessee, No. CR-1-92-00142, in February 1993. (Doc. No.
9-2, at 1.) Both the Indictment and the Judgment in that case
reflect that the defendant, in committing the offense,
“did assault and put in jeopardy the lives of the
tellers” by the use of a dangerous weapon, in violation
of 18 U.S.C. §§ 2113(a) and (d).” (Doc. No.
9-1, at 1; Doc. No. 9-2, at 1.) In addition, according to the
PSR, Martin had a prior Tennessee conviction for aggravated
robbery from 1994.
the predicate bank robbery convictions were deemed
“crimes of violence” and because the defendant
had at least two prior felony convictions that qualified as
“crimes of violence, ” as that term was then
defined by U.S.S.G. § 4B1.2(a), Martin acknowledged as
part of his Plea Agreement that he was a career offender
within the meaning of U.S.S.G. § 4B1.1. At sentencing,
Judge William J. Haynes, Jr., retired, found him to be a
career offender under the guidelines and sentenced him
accordingly. Martin did not appeal his conviction or
present motion, Martin argues that he is entitled to
resentencing under Johnson v. United States, which
was made retroactive to cases on collateral review by
Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
In Johnson, the Supreme Court held that the portion
of the ACCA defining a violent felony as a crime that
“involves conduct that presents a serious potential
risk of physical injury to another, ” 18 U.S.C. §
924(e)(2)(B)(ii), was unconstitutionally vague.
Johnson, 135 S.Ct. at 2555-56. Although Martin was
not sentenced under the ACCA, he argues that his sentencing
guideline range calculation and, therefore, his sentence are
defective insofar as they were based on language then
contained in § 4B1.2(a)(2) that was nearly identical to
the ACCA's residual clause-referencing “conduct
that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(2) (2003). More
specifically, he claims that federal armed bank robbery only
qualifies as a “crime of violence” under the
residual clause of § 4B1.2, that Johnson
applies to § 4B1.2, and that he is entitled to
response, the government argues that (1) Johnson
does not apply, or does not apply retroactively, to a claim
based on the application of § 4B1.2; and (2) even if it
did, the convictions for federal armed bank robbery qualify
as crimes of violence without reliance on the residual clause
in § 4B1.2(a)(2). (Doc. No. 9.) It also argues that
Martin is barred by the terms of his Plea Agreement from
bringing a § 2255 motion, as the agreement contained an
enforceable waiver of his right to collaterally attack his
sentence. In a Reply and Sur-reply, the parties dispute
whether the waiver of the right to bring a collateral
challenge to Martin's sentence is enforceable. (Doc. Nos.
10, 11.) As set forth below, the court finds that Martin is
not entitled to relief, regardless of whether the waiver is
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.
2016, the Sixth Circuit held that the Johnson
rationale applied with equal force to the residual clause in
U.S.S.G. § 4B1.2(a)(2). United States v.
Pawlak, 822 F.3d 902, 907 (6th Cir. 2016). More
recently, however, the Supreme Court held that the advisory
sentencing guidelines are not subject to the vagueness
challenge identified in Johnson, because, unlike the
ACCA, “the advisory Guidelines do not fix the
permissible range of sentences.” Beckles v. United
States, 137 S.Ct. 886, 892, 897 (2017), abrogating
United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016).
Martin was sentenced shortly after the issuance of United
States v. Booker, 543 U.S. 220 (2005), in which the
Supreme Court held that the federal sentencing guidelines are
advisory rather than mandatory. His Petition to Enter a Plea
of Guilty references Booker and explicitly
recognizes the advisory nature of the guidelines.
(See Crim. Doc. No. 52, at 1-2 (“Pursuant to
the Supreme Court's holding in United States v.
Booker . . ., the guidelines are ‘advisory,'
requiring the sentencing court only consider guidelines
ranges but ...