Kent v. USA

Filing 5

MEMORANDUM AND ORDER re: 4 MOTION to Withdraw as Attorney ;attorney/firm Scott Tilsen filed by Petitioner Tron Kent, 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Tron Kent. IT IS HEREBY ORDERED that defense counsel's motion to withdraw [Doc. #4] is GRANTED. IT IS FURTHER ORDERED that the motion to vacate is DENIED, and this action is DISMISSED with prejudice. IT IS FURTHER ORDERED that no certificate of appealability shall issue. An Order of Dismissal will be filed separately. Signed by District Judge Jean C. Hamilton on 9/9/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
TRON KENT,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 1:16-CV-173 JCH

MEMORANDUM AND ORDER
This matter is before the Court on movant’s motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. Movant requests sentencing relief under the recent Supreme
Court case of Johnson v. United States, 135 S.Ct. 2551 (2015). Based on the following reasons,
the motion will be denied.
In Johnson, the Court held the “residual clause” of the Armed Career Criminal Act (“the
ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), to be unconstitutionally vague. The ACCA enhances the
punishment for firearms offenses under 18 U.S.C. § 922(g) when the defendant has at least three
prior convictions for a serious drug offense or a “violent felony.” The term “violent felony” is
defined in the ACCA as felony offense that “(1) 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 the use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(B) (emphasis added). The
“otherwise involves” language of the ACCA is the residual clause that the Supreme Court found
unconstitutional. Johnson, 135 S.Ct. at 2563.

After a jury trial, movant was convicted of two counts of being a felon in possession of a
firearm, two counts of possessing a firearm in furtherance of a drug trafficking offense, one
count of possessing cocaine base with intent to distribute, one count of possessing child
pornography and one count of producing child pornography. See United States v. Kent, 1:06-CR88 JCH (E.D.Mo 2007). Movant was sentenced on August 13, 2007, to a total term of life
imprisonment.1
When calculating movant’s offense level under the United States Sentencing Guidelines,
the Court first had to group the offenses into those that involved the same victim and/or those
that were connected by a common scheme or plan. See U.S.S.G. 3D1.2. For the first base
offense level, the Court grouped Counts One, Three and Five.2 The Court then applied Section
2D1.1(a)(3) to find the base offense level, which refers to the Drug Quantity Table. Section
2D1.1 does not contain an enhancement for prior “crimes of violence.” Additionally, for those
counts, movant’s sentence was not enhanced under the ACCA or Chapter 4 of the Guidelines.
That is, movant’s sentence was not affected by the holding in Johnson because his sentence was
not enhanced for any prior “crime of violence.”
For Counts Six and Seven, the base offense level was found in Section 2G2.1(a) of the
Guidelines, which refers to Sexual Exploitation of a Minor. Again, this section of the Guidelines

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Movant received life imprisonment as to each of the counts of possessing a firearm in
furtherance of a drug trafficking offense. Each term was given consecutively. Movant also
received life sentences on one of the felon in possession of a firearm charges and the possession
with intent to distribute charge. These terms were to run concurrently. Movant received 120
months’ imprisonment on a second felon in possession charge, as well as the charge of
possession of child pornography. He received 360 months’ imprisonment on the charge of child
exploitation/production of child pornography. These terms were to run concurrently.
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Counts 2 and 4, possession of a firearm in furtherance of a drug trafficking crime, are
specifically excluded from being grouped together for guideline calculation purposes, as the
statute specifies a specific term of imprisonment to be imposed to run consecutively to any other
term of imprisonment. This part of the statute was not affected by the holding in Johnson.
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does not contain an enhancement for crimes of violence, nor was movant’s sentence enhanced
under Chapter 4 in this section.
In the last section of the Sentencing Report, movant received a Multiple Count
Adjustment, pursuant to 3D1.4 of the U.S.S.G, “Determining the Combined Offense Level.” In
this section, movant did receive a Chapter 4 enhancement, however, the enhancement was for
two prior controlled substance offenses only.
As noted above, Johnson dealt with enhancements for “crimes of violence,” but does not
apply to enhancements for controlled substance offenses. Therefore, Johnson does not apply to
movant’s case. As a result, movant’s motion to vacate will be denied. See Rule 4 of the Rules
Governing Habeas Corpus.
Finally, 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 defense counsel’s motion to withdraw [Doc. #4] is
GRANTED.
IT IS FURTHER ORDERED that the motion to vacate is DENIED, and this action is
DISMISSED with prejudice.

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IT IS FURTHER ORDERED that no certificate of appealability shall issue.
An Order of Dismissal will be filed separately.
Dated this 9th day of September, 2016.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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