Smith v. United States of America

Filing 50

MEMORANDUM OPINION OF THE COURT & ORDER. Signed by District Judge Todd J. Campbell on 11/22/16. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

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

MONIQUE SMITH
v.
UNITED STATES OF AMERICA

)
)
)
)
)

No. 3:14-01248
JUDGE CAMPBELL

MEMORANDUM AND ORDER
I. Introduction
Pending before the Court are filings made by the Petitioner, pro se, requesting relief
under 28 U.S.C. § 2255 (Docket Nos. 38, 49); a Notice Regarding Supplemental Brief On
Applicability Of Johnson v. United States (Docket No. 45), filed by counsel for the Petitioner;
and the Government’s Response (Docket No. 46) in opposition.
For the reasons set forth herein, the Petitioner’s request for relief is DENIED.
II. Procedural and Factual Background
In the underlying criminal case, the Petitioner was convicted, after a week-long trial, of
certain firearms and drug trafficking crimes. (Docket Nos. 860, 863 in Case No. 3:11-00194). As
part of its verdict, the jury found the drug conspiracy in which the Petitioner participated
involved 280 grams or more of cocaine base, as well as a quantity of cocaine and marijuana.
(Docket No. 863 in Case No. 3:11-00194). Based on that quantity of drugs, and the Petitioner’s
two prior felony drug offenses, the applicable sentence imposed by 21 U.S.C. §§ 841(b)(1)(A)
and 851 was a mandatory minimum sentence of life imprisonment. (Docket Nos. 848, 1125,
1126, 1142, 1221, at 46-49 and 83, in Case No. 3:11-00194). In addition, the Petitioner’s
conviction of possessing a firearm in furtherance of a drug trafficking crime required a 60-month

mandatory consecutive sentence, under 18 U.S.C. §§ 924(c)(1)(A)(i) and (D)(ii). (Docket Nos.
1125, 1126, 1142, 1221, at 46-49 and 83-84, in Case No. 3:11-00194). Although the Petitioner
qualified as a Career Offender under the Sentencing Guidelines, the statutory provisions cited
above set the applicable sentence. (Id.)
At the subsequent sentencing hearing, the Court imposed the statutorily-required
sentence of life plus 60 months of imprisonment. (Docket Nos. 1125, 1126, 1221 in Case No.
3:11-00194). The Petitioner appealed, and the Sixth Circuit affirmed the Petitioner’s convictions.
(Docket Nos. 1128, 1141, 1149, 1407, 1829 in Case No. 3:11-00194).
On May 29, 2014, the Petitioner filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside Or Correct Sentence in this case. (Docket No. 1). After briefing, the Court denied the
Petitioner’s Motion and dismissed the case. (Docket Nos. 17, 18). The Petitioner appealed, but
the Sixth Circuit denied his request for a certificate of appealability, and the Supreme Court
denied the Petitioner’s writ of certiorari. (Docket Nos. 35, 37).
III. Analysis
Through the pending filings, the Petitioner relies on 28 U.S.C. § 2255 to support his
request that the Court apply Johnson v. United States, 135 S.Ct. 2551 (2015), and other
authority, to reduce his sentence. Although not addressed by the Government, the Court initially
notes that the Petitioner has not obtained permission from the Sixth Circuit to file the pending
request for relief. Under 28 U.S.C. §§ 2244(b)(3) and 2255(h), federal prisoners seeking to file a
second or successive motion attacking a sentence under 28 U.S.C. § 2255 must request from the
court of appeals an order authorizing the district court to entertain the second or successive
request. 28 U.S.C. § 2244; In re: Sims, 111 F.3d 45, 47 (6th Cir. 1997). Even if the Petitioner

2

obtained such permission, however, the Court finds his request for relief to be without merit.
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
provides for 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 statute goes on to define “violent felony” as follows, with the
residual clause set forth in italics:
(2) As used in this subsection–
***
(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
presents a serious potential risk of physical injury
to another. . .
(Emphasis added). The Johnson Court’s decision did not call into question the remainder of the
Act’s definition of “violent felony,” nor did the Court address the Act’s definition of “serious
drug offense.” 135 S. Ct. at 2563. The Supreme Court has subsequently held that the Johnson
decision applies retroactively on collateral review. Welch v. United States, 136 S. Ct. 1257
(2016).
The Sixth Circuit has applied the Johnson decision to invalidate the identically-worded
3

portion of the definition of “crime of violence” set forth in the Career Offender Sentencing
Guideline, Section 4B1.2(a)(2).1 United States v. Pawlek, 822 F.3d 902 (6th Cir. 2016).
None of this authority applies to reduce the Petitioner’s sentence, however, because his
sentence was not based on the Armed Career Criminal Act or any statute or guideline containing
language similar to that invalidated in Johnson. Rather, the Petitioner’s sentence was based on 21
U.S.C. §§ 841(b)(1)(A) and 851, and 18 U.S.C. §§ 924(c)(1)(A)(i) and (D)(ii), and was largely
driven by the drug quantity attributed to him by the jury verdict, his prior felony drug
convictions, and his conviction of possessing a firearm in furtherance of a drug trafficking crime.
Accordingly, the Petitioner’s Johnson claim is without merit.

1

Section 4B1.2(a)(2) provides, in pertinent part, 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.
(b) The term ‘controlled substance offense’ means an offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.
(Emphasis added).
4

To the extent the Petitioner seeks to argue that his prior felony drug convictions no
longer qualify for the Section 851 enhancement, based on Mathis v. United States, 136 S.Ct.
2243 (2016), the Court declines to address such a claim as the Petitioner has failed to cite any
support for the retroactive application of Mathis on collateral review. See, e.g., Moore v. United
States, 2016 WL 6561304, at *3 (S.D. Ohio Nov. 4, 2016).
It is so ORDERED.

______________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

5