JOHN A. ROSS UNITED STATES DISTRICT JUDGE

MEMORANDUM AND ORDER

This matter is before the Court on Philanda Jamison's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Movant argues that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015). The motion will be denied and dismissed.

Movant pled guilty to distribution of heroin, 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). United States v. Harrison, No. 4:11CRJAR (E.D. Mo.). Defendant was originally sentenced to 151 months' imprisonment. However, pursuant to Fed.R.Crim.P. 35, movant's sentence was reduced to 115 months' imprisonment, and 3 years' supervised release. Movant's sentence was enhanced under U.S.S.G. § 4B1.1 because he qualified as a Career Offender.

In his motion to vacate, movant argues that he did not qualify as a Career Offender because his Missouri conviction for second degree assault in 1998 was not a "crime of violence" under the ruling in Johnson.

In Johnson, the Court held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act (ACCA) violates the Constitution's guarantee of due process. 135 S.Ct. at 2563. Johnson did not address sentence enhancements under Chapter 4 of the United States Sentencing Guidelines.

The Johnson decision does not apply to enhancements under the Guidelines. See United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990) ("Because there is no constitutional right to sentencing guidelines—or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines—the limitations the Guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague."). Although the Court is aware that the Court of Appeals for the Eighth Circuit has stated that "[the] reasoning in Wivell . . . is doubtful under Johnson," United States v. Taylor, 803 F.3d 931, 933 (8^th Cir. 2015), the Court is bound by controlling Circuit precedent. See United States v. Wivell, 893 F.2d 156 (8^th Cir. 1990) (holding that the guidelines "are simply not susceptible to a vagueness attack").

Even if Johnson were to apply to enhancements under the Guidelines, movant would not be entitled to relief. The crime of second-degree assault qualifies as a crime of violence in this instance. See United States v. Alexander, 809 F.3d 1029 (8^th Cir. 2016) (finding that knowingly attempting to cause violence to another by use of a dangerous instrument). In movant's case, he attempted to run over a police officer with his car, causing the officer to have to jump back to avoid being hit by the vehicle.

For these reasons, movant is not entitled to federal habeas relief. Furthermore, movant has failed to make a substantial showing of the denial of a constitutional right, which requires a demonstration "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not issue a Certificate of Appealability. 28 U.S.C. § 2253(c).

Accordingly,

IT IS HEREBY ORDERED that Robert Wolfrum's motion to withdraw as counsel is GRANTED.

IT IS FURTHER ORDERED that movant's motion for relief under 28 U.S.C. § 2255 is DENIED AND DISMISSED.

IT IS FURTHER ORDERED that no certificate of appealability shall issue.

Dated this 14^th day of March, 2016.

/s/_________

JOHN A. ROSS

UNITED STATES DISTRICT JUDGE