United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM & ORDER
A.TRAUGER UNITED STATES DISTRICT JUDGE
the court is Michael Kelly's pro se Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (Doc. No. 1),
augmented by the Supplemental Brief (Doc. No. 11) filed on
his behalf following the appointment of counsel. Kelly seeks
to vacate and reduce the sentence entered upon his criminal
conviction in United States v. Kelly, No.
3:10-cr-00191 (M.D. Tenn. Mar. 1, 2011) (Am. Judgment)
(Haynes, J.), 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).
was indicted in July 2010 on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g). He later pleaded guilty to that charge. Following a
sentencing hearing held on February 24, 2011, the court
sentenced him to 180 months to run concurrently with any
outstanding state sentence. The Sixth Circuit affirmed.
United States v. Kelly, No. 11-5326 (6th Cir. Feb.
district court was required to impose a mandatory minimum
sentence of 180 months, because Kelly qualified as an armed
career criminal for purposes of the ACCA. As noted in his
Presentence Report, his status as an armed career criminal
rested on three prior convictions for Tennessee aggravated
robbery in 1996 and 1997. Kelly now argues that his prior
convictions no longer qualify as “violent
felonies” under Johnson.
ACCA provides in relevant part as follows:
(1) In the case of a person who violates section 922(g) of
this title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent
felony . . ., such person shall be fined under this title and
imprisoned not less than fifteen years . . . .
(2) As used in this subsection-
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year . .
(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 . . . .
18 U.S.C. § 924(e).
Johnson v. United States, the Supreme Court struck
down the ACCA's so-called residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii) (“or otherwise involves conduct
that presents a serious potential risk of physical injury to
another”), as unconstitutionally vague.
Johnson, 135 S.Ct. at 2557. The Supreme Court
determined that the residual clause is so vague that it
“denies fair notice to defendants and invites arbitrary
enforcement by judges.” Id. Subsequently, the
Court held that Johnson was “a substantive
decision and so has retroactive effect . . . in cases on
collateral review.” Welch v. United States,
136 S.Ct. 1257, 1265 (2016).
now argues that he is entitled to sentencing relief under
Johnson because his three predicate convictions for
Tennessee aggravated robbery only qualify as violent felonies
under the now-unconstitutional “residual clause”
of the ACCA. He acknowledges that the Sixth Circuit has held
that Tennessee robbery qualifies as a crime of violence under
the use-of-force clause of the ACCA, § 924(e)(2)(B)(i),
but maintains that recent opinions from other circuits have
called into doubt the “continued viability” of
the Sixth Circuit's ruling. (Doc. No. 11, at 3.) He
therefore seeks to preserve the issue for purposes of
pursuing an appeal.
Sixth Circuit has unequivocally held that Tennessee robbery
qualifies as a violent felony under § 924(e)(2)(B)(i).
United States v. Mitchell, 743 F.3d 1054, 1059 (6th
Cir. 2014). In United States v. Lester, 719
Fed.Appx. 455, 458 (6th Cir. 2017), the court reaffirmed that
the Tennessee robbery statute, Tenn. Code Ann. §
39-13-401, “categorically required the use, attempted
use, or threatened use of violent physical force and is
therefore a predicate offense under the ...