CANNON v. USA
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)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DANIEL P. CANNON,
UNITED STATES OF AMERICA,
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.
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
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.
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
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.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
DANIEL P. CANNON
TERRE HAUTE - FCI
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 33
TERRE HAUTE, IN 47808
Sara J. Varner
INDIANA FEDERAL COMMUNITY DEFENDERS
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
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