Opinion
No. 1:11-CR-115-HSM-CHS-1 No. 1:16-CV-141-HSM
05-30-2017
KENDRICK MARSHALL RAY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION
Before the Court is the United States' motion to deny and dismiss Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 45]. Petitioner submitted the petition on May 16, 2016 [Doc. 40]. In it, he challenges his enhancement under Section 2K2.1 of the United States Sentencing Guidelines based on Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id. (suggesting that his sentence is no longer valid because the Guidelines residual provision is equally vague)].
The ACCA mandates a fifteen-year sentence for any felon who unlawfully possesses a firearm after having sustained three prior convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The statute defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the "use-of-physical-force clause"); (2) "is burglary, arson, or extortion, involves the use of explosives" (the "enumerated-offense clause"); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual clause"). 18 U.S.C. § 924(e)(2)(B). It was this third clause—the residual clause—that the Supreme Court deemed unconstitutional in Johnson. 135 S. Ct. at 2563. The Guidelines set a general base offense level of fourteen for violating 18 U.S.C. § 922(g). U.S. Sentencing Manual § 2K2.1(a)(6). For offenders with one prior conviction for either a "crime of violence" or "controlled substance offense," the base offense level increases to twenty. U.S. Sentencing Manual § 2K2.1(a)(4). Offenders with two such convictions face a base offense level of twenty-four. U.S. Sentencing Manual § 2K2.1(a)(2). "Controlled substance offense" is defined as any offense "punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of controlled substance . . . with intent to manufacture, import, export, distribute, or dispense." U.S. Sentencing Manual § 4B1.2(b). "Crime of violence" is defined in an almost identical manner as "violent felony" under the ACCA. See U.S. Sentencing Manual § 4B1.2(a) (adopting identical use-of-force and residual clauses and similar enumerated-offense clause). --------
I. BACKGROUND
In 2012, Petitioner pled guilty to possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g), and possessing a stolen firearm, in violation of 18 U.S.C. § 922(j) [Doc. 2 (indictment); Doc. 27 (notice of intent to plead guilty); Doc. 28 (factual basis)]. Based on prior Tennessee convictions for aggravated burglary, the United States Probation Office deemed Petitioner to be an armed career criminal subject to that provision's fifteen-year mandatory minimum [Presentence Investigation Report (PSR) ¶¶ 20, 27, 28, 52]. Petitioner objected to the ACCA classification [Doc. 35] and this Court sustained that objection, leaving Petitioner subject to the ten year statutory maximum applicable to non-ACCA offenders under 18 U.S.C. § 924(a)(2). In accordance with that determination, on August 14, 2012, this Court sentenced Petitioner to 120 months' incarceration and three years' supervised release [Doc. 37]. Petitioner did not appeal and his conviction became final on August 28, 2012. See, e.g., Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (explaining that an unappealed judgment of conviction becomes final when the fourteen-day period for filing a direct appeal has elapsed).
The Supreme Court decided Johnson on June 26, 2015. Less than one year later—on May 16, 2016, Petitioner filed the instant petition challenging his base offense level based on that decision [Doc. 40]. The United States responded in opposition to the § 2255 motion on June 20, 2016 [Doc. 43]; Petitioner replied to that response on July 5, 2016 [Doc. 44].
On March 6, 2017, the Supreme Court decided Beckles and held in that decision that the United States Sentencing Guidelines are "not amenable to vagueness challenges." Id. at 894. Shortly thereafter—on March 30, 2017, the United States filed the instant motion to dismiss Petitioner's collateral challenge to his career offender designation in light of Beckles [Doc. 45].
II. MOTION TO DENY AND DISMISS WITH PREJUDICE
The United States filed the motion to deny and dismiss Petitioner's collateral in light of Beckles on March 30, 2016 [Doc. 45]. Petitioner has not filed a response and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. This Court interprets the absence of a response as a waiver of opposition. See, e.g., Notredan, LLC v. Old Republic Exch. Facilitator Co., 531 F. App'x 567, 569 (6th Cir. 2013) (explaining that failure to respond or otherwise oppose a motion to dismiss operates as both a waiver of opposition to, and an independent basis for granting, the unopposed motion); see also E.D. Tenn. L.R. 7.2 ("Failure to respond to a motion may be deemed a waiver of any opposition to the relief sought"). The unopposed motion to dismiss will be granted.
III. CONCLUSION
Because Beckles forecloses Johnson-based collateral relief from Guideline enhancements and because this Court interprets Petitioner's failure to respond to the request for dismissal as a waiver of opposition, the United States' unopposed motion to deny and dismiss [Doc. 45] will be GRANTED and Petitioner's § 2255 motion [Doc. 40] will be DENIED and DISMISSED WITH PREJUDICE. This Court will CERTIFY any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal. See Fed. R. App. P. 24. Petitioner having failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
ORDER ACCORDINGLY.
/s/ Harry S . Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE