Opinion
No. 3:15 CV 01015
10-04-2016
QUANTA T. BLACK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us is Quanta Black's 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for possessing a firearm as a convicted felon, 18 U.S.C. § 922(g)(1). Because it is clear from the motion and the record of prior proceedings that Black is not entitled to relief, see Rule Governing § 2255 Proceedings 4(b), we deny his motion.
BACKGROUND
We sentenced Black to 155 months' imprisonment on July 6, 2012, after he pled guilty to being a felon in possession of a firearm. United States v. Black, No. 3:11-cr-00185-1 (M.D. Tenn. July 6, 2012) (Dkt. No. 38). At sentencing, we applied a four-level enhancement to his Base Offense Level under U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2K2.1(a)(2), because we concluded Black had two prior convictions that qualified as crimes of violence as defined in § 4B1.2(a)(1). Black's original judgment became final on July 20, 2015, fourteen days after the entry of judgment. Fed. R. App. P. 4(b)(1). Black did not timely appeal his conviction.
Black's original judgment contained a typographical error stating that he had been sentenced as an armed career criminal under 18 U.S.C. § 924(e). Black, No. 3:11-cr-00185-1 (Dkt. No. 38). On August 20, 2015, we issued an amended judgment correcting that error, and clarifying that Black was not sentenced as an armed career criminal. Id. (Dkt. No. 49).
On October 4, 2013, Black filed a motion for an extension of time to file a motion challenging his sentence under 28 U.S.C. § 2255. Black, No. 3:11-cr-00185-1 (Dkt. No. 42). We denied that motion because we do not have the authority to grant an extension of time past the deadline imposed in § 2255(f). Id. (Dkt. No. 43).
Black filed the present § 2255 motion to vacate, set aside, or correct his sentence in light of Johnson v. United States, — U.S. —, 135 S. Ct. 2551 (2015), on September 21, 2015. (Dkt. No. 1.) The Supreme Court decided Johnson on June 26, 2015. — U.S. —, 135 S. Ct. 2551 (2015). Accordingly, Black's instant motion is timely pursuant to 28 U.S.C. § 2255(f)(3).
ANALYSIS
Black argues that his four-level § 2K2.1(a)(2) enhancement was improper because his predicate convictions "do not qualify as 'crimes of violence' for § 2K2.1(a)(2) purposes" under Johnson v. United States, — U.S. —, 135 S. Ct. 2551 (2015). (Mot. (Dkt. No. 1) at ¶ C.) At the time we sentenced Black, the sentencing guidelines defined a "crime of violence" as any federal or state offense that:
Black raised the same argument in his June 11, 2015 filing seeking an adjustment to his sentencing guidelines range. Black, No. 3:11-cr-00185-1 (Dkt. No. 51 ¶ 1). We denied that request for much the same reasons that we deny the present motion. Id. (Dkt. No. 52). --------
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, orU.S.S.G. § 4B1.2(a) (amended August 1, 2016).
(2) is a 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.
Black contends that we determined his prior convictions were "crimes of violence" under § 2K2.1(a)(2) "by application of § 4B1.2(a)(2)'s residual clause." (Mot. ¶ B.3.) As Black observes, the Supreme Court recently held the Armed Career Criminal Act's identical residual clause was unconstitutionally vague. Johnson v. United States, — U.S. —, 135 S. Ct. 2551, 2557-59, 63; 18 U.S.C. § 924(e)(2)(B)(ii) (stating in part that a "violent felony" includes a crime that "involves conduct that presents a serious potential risk of physical injury to another"). The United States Sentencing Commission, in response to Johnson, amended its guidelines and removed § 4B1.2(a)(2)'s residual clause. U.S.S.G. § 4B1.2 (supplement) (amended August 1, 2016).
However, neither the Supreme Court's holding in Johnson nor the Sentencing Commission's alteration of § 4B1.2(a)(2) invalidates Black's sentence, because we did not rely on the residual clause when imposing the § 2K2.1(a)(2) enhancement. Rather, we relied on § 4B1.2(a)(1). Black's underlying convictions are for second degree assault under Kentucky Revised Statutes ("KRS") § 508.20. Black, No. 3:11-cr-00185-1 (Dkt. No. 36 at 1-2). Under Kentucky law, a person is guilty second degree of assault if:
(a) He intentionally causes serious physical injury to another person; orKRS § 508.20(a)-(c). Because KRS § 508.20 "requires proof of physical injury or serious physical injury," all convictions under that statute qualify as "crimes of violence" based on the definition in § 4B1.2(a)(1). United States v. Collins, 799 F.3d 554, 596-97 (6th Cir. 2015); U.S.S.G. § 4B1.2(a)(1) (supplement) (amended August 1, 2016) (stating that "crime of violence" includes those offenses that "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another"). Thus, Black's convictions under KRS § 508.20 qualify as "crimes of violence" for the purposes of the § 2K2.1(a)(2) enhancement without reference to § 4B1.2(a)(2)'s residual clause.
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
Finally, we decline to enter a certificate of appealability in Black's case. The Rules Governing § 2255 Proceedings require that a district court "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule Governing § 2255 Proceedings 11(a). "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). That is, Black must make a substantial showing that "reasonable jurists could 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.'" Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595, 1603-04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 3394 (1983)). Specifically, Black "must demonstrate that reasonable jurists would find the district court's assessment of [his] constitutional claims debatable or wrong." Id. at 484, 120 S.Ct. at 1604. Because we find that no reasonable jurists would differ on our disposition of Black's § 2255 motion, we decline to issue a certificate of appealability.
CONCLUSION
For the reasons set forth above, Black's 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence is denied. We also decline to issue a certificate of appealability. It is so ordered.
/s/_________
Honorable Marvin E. Aspen
United States District Judge Dated: October 4, 2016
Chicago, Illinois