United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (Doc.
COHN UNITED STATES DISTRICT JUDGE
a criminal case. In 2012, defendant pleaded guilty to
conspiracy to distribute controlled substances, in violation
of 21 U.S.C. § 846, and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). Defendant was sentenced to 24
months for the drug offense and 60 months consecutive for the
the Court is defendant's motion to vacate under 28 U.S.C.
§ 2255 in light of Johnson v. United States,
135 S.Ct. 2551 (2015). (Doc. 71). The government as filed a
response (Doc. 78), contending that the motion should be
denied for lack of merit. The Court agrees. The reasons
28 U.S.C. § 2255 provides:
"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 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."
prevail under § 2255, Petitioner must show a
“fundamental defect which inherently results in a
complete miscarriage of justice." U.S. v.
Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v.
U.S., 368 U.S. 424, 428 (1962)).
seeks relief under based on the new, retroactively applicable
right recognized by the Supreme Court in Johnson v.
United States, 135 S.Ct. 2551 (2015), which held that
the residual clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague.
Defendant argues that Johnson also invalidated the
residual clause in 18 U.S.C. § 924(c). Defendant's
section 924(c) prohibits the use or carriage of a firearm
“during and in relation to any crime of violence or
drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A).
The residual clause is in the definition of “crime of
violence” not “drug trafficking crime.” See
18 U.S.C. § 924(c)(3)(B). Indeed, the term “drug
trafficking crime” is defined as “any felony
punishable under the Controlled Substances Act.” 18
U.S.C. § 924(c)(2).
defendant was sentenced in count one for conspiracy to
distribute and to possess with intent to distribute
controlled substances, in violation of 21 U.S.C. §§
841(b) and 846. His § 924(c) conviction specifically
relied on defendant's drug conspiracy as its predicate
offense. In other words, defendant's § 924(c)
conviction was for possessing a firearm in furtherance of a
drug trafficking crime, not a crime of violence. As such,
Johnson does not apply. See United States v.
Whitson, ___ F. App'x ___, 2016 WL 6818854 at * 3
(6th Cir. Nov. 18, 2016).
even if defendant's § 924(c) conviction was under
the residual clause, i.e. for “a crime of violence,
” he is still not entitled to relief. The Court of
Appeals for the Sixth Circuit has recently held that
Johnson does not apply to convictions under the
residual clause ...