Filing 15

ORDER Denying Motion to Vacate, Set Aside or Correct Sentence (2255) and Denying a Certificate of Appealability. (See Order). Copy to Petitioner via U.S. Mail. Signed by Judge Sarah Evans Barker on 11/14/2017.(MAC)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION DANIEL P. CANNON, ) ) ) ) ) ) ) ) ) Petitioner, vs. UNITED STATES OF AMERICA, Respondent. No. 1:16-cv-01541-SEB-DML Entry Dismissing Motion to Vacate, Set Aside, or Correct Sentence and Denying a Certificate of Appealability The petitioner filed a motion for relief pursuant to 28 U.S.C. § 2255 arguing that, under Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence was unconstitutionally enhanced and he must be resentenced. For the reasons stated below, the motion for relief is denied. A. Overview On June 22, 2016, the petitioner filed a motion pursuant to 28 U.S.C. § 2255. The petitioner claimed that, based on the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551 (2015), his offense for assaulting a correctional officer no longer qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a). Dkt. 1. He therefore concluded that he does not have the two necessary predicate convictions to qualify him as a career offender under the Sentencing Guidelines and that his sentence was improperly enhanced under that provision. Upon a joint motion by the parties, this Court stayed the proceedings until the Supreme Court issued its decision in United States v. Beckles, 137 S. Ct. 886 (March 6, 2017). After the Beckles decision, counsel appointed to represent the petitioner moved to withdraw her appearance. Dkts. 8 & 9. This Court ordered the petitioner to either voluntarily dismiss this action or file a brief 1 showing cause “why this action should not be dismissed as untimely and lacking merit under Beckles.” Dkt. 9. The petitioner filed an amended § 2255 motion on May 26, 2017, contending that Beckles has no application to his case and that he should be “re-sentence[d] without the career offender enhancement improperly imposed pursuant to the Sentencing Guideline provision under U.S.S.G. § 4B1.2(a).” Dkt. 10, p. 3. B. Analysis Pursuant to 28 U.S.C. § 2244(b)(3), the Seventh Circuit authorized this Court to consider the petitioner’s claim that his sentence is unconstitutional under Johnson which held that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. The petitioner was sentenced as a career offender under United States Sentencing Guideline § 4B1.2(a)(2) and argues that because the residual clause of the ACCA is unconstitutionally vague, it follows that the identical residual clause in the career offender provision of the Sentencing Guidelines is also unconstitutionally vague. The United States Supreme Court, however, held otherwise in Beckles v. United States, 137 S.Ct. 886 (2017), concluding that the Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause. In other words, the holding of Johnson does not apply to cases, like the petitioner’s, challenging guideline calculations. For these reasons, the petitioner’s motion to vacate, set aside or correct sentence is dismissed with prejudice. Judgment consistent with this Entry shall now issue and a copy of this Entry shall be docketed in No. 1:04-cr-0201-SEB-DKL-3. Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the court finds that the petitioner has failed to show 2 that reasonable jurists would find “it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability. IT IS SO ORDERED. 11/14/2017 Date: __________________ _______________________________ SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana Distribution: DANIEL P. CANNON 04287-028 TERRE HAUTE - FCI TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 33 TERRE HAUTE, IN 47808 Sara J. Varner INDIANA FEDERAL COMMUNITY DEFENDERS James Robert Wood UNITED STATES ATTORNEY'S OFFICE 3

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