Opinion
CRIMINAL NO. 12-10253-RWZ
04-04-2017
KHYRON JOLLEY v. UNITED STATES OF AMERICA
ORDER
Petitioner Khyron Jolley moves this court to vacate and correct his sentence pursuant to 28 U.S.C. § 2255. He claims that after the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II"), he is no longer a career offender under the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G."). In Johnson II, the Supreme Court held that the residual clause of the Armed Career Criminal Act of 1984 ("ACCA") is unconstitutionally vague. See 135 S. Ct. at 2557. Petitioner argues that this holding extends to the identically-worded clause in the Guidelines' career offender provision, see U.S.S.G. § 481.2(a)(2).
Effective August 1, 2016, Guidelines § 4B1.2(a) was amended to eliminate paragraph (2) and to insert "is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c)." See Supplement to the 2015 Guidelines Manual, Appendix C, amendment 798 (U.S. Sentencing Comm'n 2016). --------
However, on March 6, 2017, the Supreme Court held in Beckles v. United States, 137 S. Ct. 886 (2017), that "the Guidelines are not subject to a vagueness challenge under the Due Process Clause," and so Johnson II does not apply to the Guidelines' career offender provision. Id. at 892. This decision forecloses petitioner's argument. Accordingly, his motion (Docket # 110) is DENIED.
In light of Beckles, there does not seem to be "a substantial showing of the denial of a constitutional right," 28 U.S.C § 2253(c)(2). Petitioner has 14 days from the date of this order to explain why a certificate of appealability should issue. Otherwise, there shall be no certificate of appealability. April 4, 2017
DATE
/s/Rya W. Zobel
RYA W. ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE