Opinion
Crim. No. 1:05-cr-0405
11-07-2016
UNITED STATES OF AMERICA v. DARYL DENNISON
MEMORANDUM
Before the court is Daryl Dennison's pro se motion filed under 28 U.S.C. § 2255 to vacate or correct a sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. 168.) Johnson held that the residual clause of the Armed Career Criminal Act ("ACCA") was unconstitutionally vague and that increasing a defendant's sentence under the residual clause denies due process of law.
Dennison, however, was not sentenced under the ACCA. He was charged under 21 U.S.C. § 841(a)(1). The guideline for that offense is USSG § 2D1.1. Dennison was accountable for at least 50 but less than 150 grams of cocaine, which resulted in a base offense level of 32. Because the offense involved a dangerous weapon, a two level increase was required, giving him an offense level of 34. This offense level was greater than the career offender guideline of 32, thus, the offense level of 34 was used. (See Presentence Report, p. 4 ¶ 27).
The Johnson case is not applicable to Daryl Dennison. The motion will be denied. An appropriate order will issue.
s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge Dated: November 7, 2016