Hembree v. United States of America

Filing 9

MEMORANDUM signed by District Judge Aleta A. Trauger on 9/8/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

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

SHANNON DEAN HEMBREE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 2:16-cv-00042
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 Petitioner’s Supplemental
Briefing (Docket No. 5); and the Government’s Response (Docket No. 8). For the reasons set
forth herein, the Motion To Vacate, Set Aside, Or Correct Sentence In Accordance With 28
U.S.C. § 2255 (Docket No. 1) is DENIED, and this action is DISMISSED.
II. Procedural Background
The Petitioner pled guilty, before now-retired Judge Todd J. Campbell, 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. 73, 79, 80, 92 in
Case No. 2:09cr00007). Through the Plea Agreement, the parties agreed to a sentence of 120
months of imprisonment. (Docket No. 80, at 6, in Case No. 2:09cr00007).1 At the subsequent

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At the change of plea hearing, counsel for the Petitioner explained that the charge in
the original Indictment, possession of a firearm by a convicted felon, would have subjected the
Petitioner to a 15-year mandatory minimum sentence. (Docket No. 92, at 7, in Case No.
2:09cr00007).

sentencing hearing, on August 4, 2011, Judge Campbell imposed the agreed 120-month
sentence. (Docket Nos. 87, 88, 89, 93 in Case No. 2:09cr00007). 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
conclusions rather than statements of fact.’” Id.
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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
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 Section 2K2.1 of the Sentencing Guidelines, which was used to
determine his offense level 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
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
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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

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Section 2K2.1(a)(4)(A), which was applied to the Petitioner at sentencing, provides
for an offense level of 20 if the defendant “committed any part of the instant offense subsequent
to sustaining one felony conviction of either a crime of violence or a controlled substance
offense.” Application Note 1 to the Guideline incorporates the definition of “crime of violence”
used in Sentencing Guideline Section 4B1.2(a). When the Petitioner was sentenced, the term was
defined in Section 4B1.2(a) 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).
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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definition.
In its Response, the Government argues that the waiver provision of the Plea Agreement
bars the Petitioner’s claim, and that the Petitioner’s prior conviction for aggravated burglary
qualifies as a “crime of violence” without regard to the residual clause.
The court need not address these issues, however, because the Supreme Court’s decision
in Beckles v. United States, ___ U.S. ___, 137 S. Ct. 886, 891, 197 L. Ed. 2d 145 (2017)
forecloses the Petitioner’s claim. In Beckles, the 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 prior conviction for aggravated burglary qualified as a
“crime of violence” under the Sentencing Guidelines’ residual clause definition, application of
that definition was not unconstitutional.
The Petitioner alternatively argues that he agreed to the 120-month sentence in this case,
higher than the guideline range, “to avoid a sentence of at least fifteen years as an Armed Career
Criminal under the original Indictment due to the erroneous belief he shared with his lawyer and
the attorney for the Government that his prior state convictions for aggravated burglary were
violent felonies as defined by 18 U.S.C. § 924(e)(2)(b).” (Docket No. 1, at 2). The Sixth Circuit
has made clear, however, that changes in the law made after the entry of a guilty plea do not
render an otherwise valid plea involuntary or unknowing. See, e.g., United States v. Bradley, 400
F.3d 459, 463 (6th Cir. 2005); United States v. Ryerson, 502 F. App’x 495, 498 (6th Cir. 2012);
United States v. Whitsell, 481 F. App’x 241, 243 (6th Cir. 2012). See also Brady v. United States,
397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)(“. . . a voluntary plea of guilty

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intelligently made in the light of the then applicable law does not become vulnerable because
later judicial decisions indicate that the plea rested on a faulty premise.”) The Petitioner has not
shown that his guilty plea was invalid. 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 an 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
the denial of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).
It is so ORDERED.
_______________________________
ALETA A. TRAUGER
U.S. District Judge

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