Pinckard v. United States

Jean C. Hamilton UNITED STATES DISTRICT JUDGE

MEMORANDUM AND ORDER

This matter is before the Court on movant's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Movant requests sentencing relief under Johnson v. United States, 135 S.Ct. 2551 (2015). The motion is denied.

In Johnson, the Court held the "residual clause" of the Armed Career Criminal Act ("the ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), to be unconstitutionally vague. The ACCA enhances the punishment for firearms offenses under 18 U.S.C. § 922(g) when the defendant has at least three prior convictions for a serious drug offense or a "violent felony." The term "violent felony" is defined in the ACCA as felony offense that "(1) 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(B) (emphasis added). The "otherwise involves" language of the ACCA is the residual clause that the Supreme Court found unconstitutional. Johnson, 135 S.Ct. at 2563.

In this case, movant pled guilty to drug crimes. Movant's sentence was not enhanced under the ACCA because he did not have three qualifying violent felony convictions. Nor was his sentence enhanced under the Sentencing Guidelines. As a result, Johnson has no application to movant's sentence, and the motion must be denied.

Finally, movant has failed to make a substantial showing of the denial of a constitutional right, which requires a demonstration "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c).

Accordingly,

IT IS HEREBY ORDERED that the motion to vacate is DENIED, and this action is DISMISSED with prejudice.

An Order of Dismissal will be filed separately.

Dated this 18th day of July, 2016.

\s\ Jean C. Hamilton

UNITED STATES DISTRICT JUDGE