Tademy v. USA
Filing
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MEMORANDUM DECISION AND ORDER Denying and Dismissing With Prejudice Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Dale A. Kimball on 7/20/2016. (eat)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
BLAKE CHRISTOPHER TADEMY,
Petitioner,
vs.
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT
SENTENCE
UNITED STATES OF AMERICA,
Case No. 2:16-CV-726-DAK
Respondent.
The Honorable Dale A. Kimball
This matter is before the court on Petitioner Blake Christopher Tademy’s Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. On September 12, 2012, Mr.
Tademy was named in a three-count indictment charging possession of methamphetamine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c), and possession of a firearm and
ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). On March 25, 2013, under the terms
of a signed “Statement By Defendant in Advance of Plea of Guilty,” Mr. Tademy pleaded guilty to
possession of methamphetamine with intent to distribute and possession of a firearm in furtherance
of a drug trafficking crime. The other count against him was ultimately dismissed.
The court accepted the plea, and, on March 25, 2013, imposed the sentence on Mr. Tademy
of 60 months’ imprisonment followed by a 5-year term of supervised release. Mr. Tademy did not
file a direct appeal.
On June 23, 2016, Mr. Tademy placed in the prison mailing system a Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. Mr. Tademy’s motion argues that the decision
by the United States Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), which
held that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally
vague, applies to 18 U.S.C. § 924(c). Therefore, Mr. Tademy argues that his sentence based on
Count II should be vacated and that he should be resentenced.
In general, “[a] district court is authorized to modify a Defendant's sentence only in
specified instances where Congress has expressly granted the court jurisdiction to do so.” United
States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Under 28 U.S.C. § 2255, a prisoner in
custody can move the court to vacate, set aside, or correct a sentence if the sentence was
unconstitutional, illegal, in excess of the maximum authorized by law, or otherwise subject to
collateral attack.
Although Mr. Tademy is arguing that his sentence was unconstitutional, his petition fails
on the merits. The issue discussed and decided by the Supreme Court in Johnson is “whether [the
ACCA residual clause’s] definition of a violent felony survives the Constitution’s prohibition of
vague criminal laws.” Johnson v. United States, 135 S. Ct. 2551, 2555 (2015). The Supreme Court
held “that imposing an increased sentence under the residual clause of the Armed Career Criminal
Act violates the Constitution’s guarantee of due process” but clarified that its decision did not
affect “the remainder of the Act’s definition of a violent felony.” Id. at 2563. Significantly, the
Supreme Court’s decision in Johnson dealt entirely with the way that the statute defined a “violent
felony.”
Since the Supreme Court decided the Johnson case, many courts have considered whether
its holding applies to other statutes which similarly define a “violent felony” or a “crime of
violence.” See, e.g., Dimaya v. Lynch, 803 F.3d 1110, 1115-18 (9 th Cir. 2015) (following the
reasoning in Johnson to find the residual clause in an immigration statute void for vagueness).
Several district courts, including this one, have considered whether Johnson applies to the residual
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definition of “crime of violence” found in 18 U.S.C. § 924(c)(3)(B). See United States v. Checora,
No. 2:14-CR-457-DAK, 2015 WL 9305672, at *8 (D. Utah Dec. 21, 2015) (concluding that
“nothing in the Supreme Court’s Johnson decision requires this court to find § 924(c)(3)(B)’s
residual clause unconstitutionally vague” and listing other district court cases that have reached the
same conclusion).
However, Mr. Tademy was not sentenced under the residual clause definition of “crime of
violence” in § 924(c)(3)(B). The sentencing enhancement described in § 924(c) applies when an
individual uses or carries a firearm “during and in relation to” or possesses a firearm “in
furtherance of” either a “crime of violence” or a “drug trafficking crime.” 18 U.S.C. §
924(c)(1)(A). Mr. Tademy’s sentenced was enhanced under § 924(c) for possession of a firearm in
furtherance of a drug trafficking crime. Mr. Tademy’s enhancement was in no way related to the
“crime of violence” portion of § 924(c) and, therefore, did not implicate § 924(c)’s residual clause
definition of “crime of violence.” Because the Supreme Court’s decision in Johnson applied only
to the way that the ACCA defined a “violent felony,” Johnson is not implicated at all when the §
924(c) sentencing enhancement is applied only to a drug trafficking crime.
Because Johnson does apply to drug trafficking crimes under § 924(c), Mr. Tademy’s
sentence based on that statute does not need to be vacated, and Mr. Tademy is not entitled to be
resentenced.
Pursuant to Rule 11 of the Rules Governing § 2255 Proceedings for the United States
District Courts, “[t]he district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Under 28 U.S.C. § 2253, a certificate of appealability "may
issue . . . only if the applicant has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005)
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(quoting 28 U.S.C. § 2253(c)(2)). The court finds that “reasonable jurists could not debate whether
the petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). The court concludes that Mr. Tademy has not made a substantial showing of the denial of a
constitutional right and, therefore, declines to issue a certificate of appealability. If Mr. Tademy
wishes to appeal the court’s ruling on his motion, he must seek a certificate from the court of
appeals under Federal Rule of Appellate Procedure 22.
For the reasons above, Mr. Tademy’s motion under 28 U.S.C. § 2255 is DENIED and
DISMISSED WITH PREJUDICE because it lacks merit.
DATED this 20th day of July, 2016.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
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