Kirby v. United States of America

Filing 8

MEMORANDUM signed by District Judge Aleta A. Trauger on 5/25/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

RAYMOND LEE KIRBY,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 2:16-cv-00039
Judge Trauger

MEMORANDUM
I. Introduction
Pending before the court are the Petitioner’s Motion To Vacate, Set Aside, Or Correct
Sentence In Accordance With 28 U.S.C. § 2255 (Docket No. 1), the Government’s Response
(Docket No. 5), the Petitioner’s Reply (Docket No. 6), and the Government’s Supplemental
Response (Docket No. 7).
For the reasons set forth herein, the Motion To Vacate, Set Aside, Or Correct Sentence
(Docket No. 1) is DENIED, and this action is DISMISSED.
II. Procedural Background
The Petitioner pled guilty to a Superseding Information charging knowing possession of a
stolen firearm that had been transported in interstate commerce, in violation of 18 U.S.C. §§
922(j) and 924. (Docket Nos. 34, 38, 39, 49 in Case No. 2:09cr00014). Through their Plea
Agreement, the Government and the Petitioner agreed to a sentence of 120 months of
imprisonment. (Id.)1 At the subsequent sentencing hearing, on June 20, 2011, the court imposed
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The parties acknowledged in the Plea Agreement that the charge in the original
Indictment, possession of a firearm by a convicted felon, would have subjected the Petitioner to a

the agreed 120-month sentence. (Docket Nos. 48, 51, 52 in Case No. 2:09cr00014). The record
indicates that no appeal was taken.
III. Analysis
A. 28 U.S.C. § 2255
The Petitioner has brought this action pursuant to 28 U.S.C. § 2255. Section 2255
provides a statutory mechanism for challenging the imposition of a federal sentence:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). In order to obtain relief under Section 2255, a petitioner “‘ must
demonstrate the existence of an error of constitutional magnitude which had a substantial and
injurious effect or influence on the guilty plea or the jury's verdict.’” Humphress v. United States,
398 F.3d 855, 858 (6th Cir. 2005)(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir.
2003)).
If a factual dispute arises in a § 2255 proceeding, the court is to hold an evidentiary
hearing to resolve the dispute. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). An
evidentiary hearing is not required, however, if the record conclusively shows that the petitioner
is not entitled to relief. 28 U.S.C. § 2255(b); Ray, 721 F.3d at 761; Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999). A hearing is also unnecessary “if the petitioner’s allegations
‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or

15-year mandatory minimum sentence under the Armed Career Criminal Act. (Docket No. 49, at
5, in Case No. 2:09cr00014).
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conclusions rather than statements of fact.’” Id.
Having reviewed the pleadings, briefs, and records filed in the Petitioner's underlying
criminal case, as well as the filings in this case, the court finds it unnecessary to hold an
evidentiary hearing because the records conclusively establish that the Petitioner is not entitled to
relief on the issues raised.
B. Johnson v. United States
Through his Motion, the Petitioner claims that his sentence should be vacated because the
Supreme Court’s decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 192 L. Ed.
2d 569 (2015) undermines the validity of Sections 2K2.1 and 4B1.2 of the Sentencing
Guidelines, which were applied to him at sentencing. In Johnson, the Supreme Court held that
the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
is unconstitutionally vague. The ACCA imposes a 15-year mandatory minimum sentence for
defendants convicted of certain firearms offenses who have three previous convictions for a
“violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). The “residual clause” is part
of the definition of “violent felony,” as set forth below in italics:
(2) As used in this subsection–
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(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for
such term if committed by an adult, that –
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
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(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another. . .
(Emphasis added). After the Johnson decision was issued, several courts applied its reasoning to
invalidate the identically-worded portion of the definition of “crime of violence” set forth in the
Sentencing Guidelines.2 See, e.g., United States v. Pawlek, 822 F.3d 902 (6th Cir. 2016). The
Petitioner relies on the reasoning of these decisions in arguing that the Sentencing Guidelines
that were applied to him are unconstitutionally void for vagueness. More specifically, the
Petitioner argues that his sentence was enhanced because his prior conviction for aggravated
burglary was improperly considered to be a “crime of violence” under the residual clause of the
definition.
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“Crime of violence” was defined in the Sentencing Guidelines as follows, with the
“residual clause” set forth in italics:
(a) The term ‘crime of violence’ means any offense under federal
or state law, 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, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a)(2) (Emphasis added). That definition was incorporated by reference in
Section 2K2.1, cmt. n. 1.
Through Amendment 798 to the Sentencing Guidelines, which became effective on
August 1, 2016, the Sentencing Commission deleted the residual clause portion of the definition
and replaced it with language that enumerates specific offenses.
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In its Response, the Government argues that the Petitioner waived his right to challenge
his sentence on collateral review through the Plea Agreement, and alternatively, that the
Petitioner’s prior conviction for aggravated burglary is one of the enumerated offenses identified
in the definition, and therefore, it qualified as a “crime of violence” without regard to the residual
clause. In a Supplemental Response, the Government argues that the Petitioner’s claim is
foreclosed by the Supreme Court’s decision in Beckles v. United States, ___ U.S. ___, 137 S. Ct.
886, 891, 197 L. Ed. 2d 145 (2017), which was issued on March 6, 2017.
In Beckles, the Supreme Court held that, unlike the statute at issue in Johnson, the
Sentencing Guidelines are advisory, and therefore, the definitions in the Guidelines, including the
residual clause, are not subject to a vagueness challenge under the Due Process Clause. Thus,
even if the Petitioner’s aggravated burglary conviction qualified as a “crime of violence” under
the Sentencing Guidelines’ residual clause definition, application of that definition was not
unconstitutional. The Petitioner has not suggested that the Beckles decision is inapplicable to his
claim, nor has he raised an alternative challenge to his conviction or sentence. Accordingly, the
Petitioner’s Motion To Vacate is without merit.
IV. Conclusion
For the reasons set forth herein, the court concludes that the Petitioner’s request for
Section 2255 relief is without merit. Accordingly, the Petitioner’s Motion To Vacate is denied
and this action is dismissed.
If the Petitioner gives timely notice of an appeal from the court’s Memorandum and
Order, such notice shall be treated as a application for a certificate of appealability, 28 U.S.C. §
2253(c), which will not issue because the Petitioner has failed to make a substantial showing of
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the denial of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).
It is so ORDERED.
Enter this 25th day of May 2017.

_______________________________
ALETA A. TRAUGER
U.S. District Judge

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