United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
case is before the Court on Petitioner Jake Tomlin's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (Civ. Doc. 1, § 2255
Motion).Petitioner pled guilty to three counts of
distributing or possessing with intent to distribute cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 841(b)(1)(C), and one count of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g). (See Crim. Doc. 19, Change-of-Plea
Minute Entry); (Crim. Doc. 42, Plea Tr.). The Court sentenced
Petitioner to concurrent terms of 60 months on each count,
for a total term of 60 months in prison. (Crim. Doc. 28,
Judgment). Petitioner raises a single claim: that his
sentence violates the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
United States filed a response in opposition (Civ. Doc. 6,
Response), and Petitioner did not file a reply. The matter is
ripe for review. Under 28 U.S.C. § 2255 and Rule 8(a) of
the Rules Governing Section 2255 Proceedings, a hearing is
not necessary to resolve this action. See Rosin v. United
States, 786 F.3d 873, 877 (11th Cir. 2015) (an
evidentiary hearing is not required when the petitioner
asserts allegations that are affirmatively contradicted by
the record or patently frivolous, or if in assuming the facts
that he alleges are true, he still would not be entitled to
any relief). For the reasons below, Petitioner's §
2255 Motion is due to be denied.
18 U.S.C. § 922(g), a person convicted of being a felon
in possession of a firearm is ordinarily subject to a maximum
term of imprisonment of 10 years. 18 U.S.C. § 924(a)(2).
Under the Armed Career Criminal Act (ACCA), however, that
person is subject to an enhanced mandatory minimum sentence
of 15 years in prison if he has three or more prior
convictions for a violent felony or a serious drug offense,
or both. 18 U.S.C. § 924(e). The ACCA defines the term
“violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that
(i) 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 use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added).
Subsection (i) is referred to as the “elements clause,
” the first nine words of subsection (ii) are referred
to as the “enumerated offense clause, ” and the
rest of subsection (ii), which is emphasized above, is
referred to as the “residual clause.” Mays v.
United States, 817 F.3d 628, 730-31 (11th Cir. 2016).
Johnson v. United States, the Supreme Court held
that the residual clause is unconstitutionally vague. 135
S.Ct. at 2557-58, 2563. However, the Supreme Court confined
its holding to the ACCA's residual clause; it did not
call into question any other portion of the ACCA, such as the
elements clause, the enumerated offense clause, or the
definition of a “serious drug offense.” See
id. at 2563. Nor did Johnson call into question
the constitutionality of the statutes prohibiting possession
of a firearm by a convicted felon, 18 U.S.C. §
922(g)(1), or the distribution of a controlled substance, 21
U.S.C. § 841.
years after deciding Johnson, the Supreme Court
ruled that Johnson's holding does not extend to
the residual clause of the Sentencing Guidelines' career
offender provision, U.S.S.G. § 4B1.2. Beckles v.
United States, 137 S.Ct. 886, 890 (2017). The Supreme
Court reasoned that advisory sentencing guidelines “do
not implicate the twin concerns underlying vagueness
doctrine-providing notice and preventing arbitrary
enforcement.” Id. at 894. “Accordingly,
[the Court held] that the advisory Sentencing Guidelines are
not subject to a vagueness challenge under the Due Process
Clause and that § 4B1.2(a)'s residual clause is not
void for vagueness.” Id. at 895.
following year, the Supreme Court held that the residual
clause of 18 U.S.C. § 16(b), which defines the term
“crime of violence” in language resembling the
ACCA's residual clause, is unconstitutionally vague as
applied in immigration cases. Sessions v. Dimaya,
138 S.Ct. 1204, 1216 (2018). However, Dimaya also
did not call into doubt the validity of 18 U.S.C. §
922(g)(1) or 21 U.S.C. § 841. And in United States
v. Davis, No. 18-431, the Supreme Court will decide the
fate of the residual clause of 18 U.S.C. § 924(c)(3) in
light of Johnson and Dimaya. But
Davis also does not raise any questions about the
validity of 18 U.S.C. § 922(g)(1) or 21 U.S.C. §
foregoing review makes Petitioner's case straightforward.
Petitioner argues that his sentence is illegal in light of
Johnson v. United States. However, Petitioner was
not sentenced under the ACCA, nor was Petitioner convicted of
carrying a firearm in furtherance of a crime of violence
under 18 U.S.C. § 924(c). Rather, Petitioner was
convicted and sentenced only for distribution of cocaine base
and possession of a firearm by a convicted felon. (Crim. Doc.
28). Petitioner's sentence does not rely on the residual
clauses found in 18 U.S.C. §§ 924(e), 924(c)(3), or
16(b). And as noted above, neither
Johnson, Dimaya, nor Davis raise
any questions about the validity 18 U.S.C. § 922(g)(1)
or 21 U.S.C. § 841. Moreover, the Eleventh Circuit has
rejected void-for-vagueness challenges to both of these
statutes. See United States v. Vereen, 920 F.3d
1300, 1312 (11th Cir. 2019) (rejecting a void-for-vagueness
challenge to 18 U.S.C. § 922(g)(1) based on the absence
of a defense for innocent transitory possession, or
“ITP.”); United States v. Moody, 555
Fed.Appx. 867, 869 (11th Cir. 2014) (“The plain
language of § 922(g) makes clear that it is unlawful for
any person who has been convicted of a felony to
‘possess in or affecting commerce, any firearm or
ammunition,' and as Moody has failed to show how that
provision is so vague that a person of ordinary intelligence
would have to guess at its meaning, his void-for-vagueness
argument must fail.”); United States v. Saget,
991 F.2d 702, 714 (11th Cir. 1993) (rejecting vagueness
challenge to 21 U.S.C. § 841 based on the statute's
failure to define “cocaine base.”) (citing
United States v. Williams, 876 F.2d 1521 (11th Cir.
1989)). Accordingly, Petitioner's vagueness challenge
cites two Eleventh Circuit cases that he claims support his
argument: United States v. Matchett, 802 F.3d 1185
(11th Cir. 2015), and United States v. Clarke, 822
F.3d 1213 (11th Cir. 2016) (“Clarke
III”). § 2255 Motion at 2. However,
Petitioner misunderstands the holdings of those cases. In
Matchett, the Eleventh Circuit held (before the
Supreme Court did in Beckles) that advisory
sentencing guidelines are not subject to
void-for-vagueness challenges. Matchett, 802 F.3d at
1193-96. In Clarke, the Eleventh Circuit certified a
question to the Florida Supreme Court about whether a guilty
plea to a felony, for which adjudication was withheld,
qualifies as a prior conviction under § 790.23(1), Fla.
Stat., the Florida statute prohibiting possession of a
firearm by a convicted felon. United States v.
Clarke, 780 F.3d 1131, 1133 (11th Cir. 2015)
(“Clarke I”). The Eleventh Circuit did
so because Florida law suggested that a guilty plea with
adjudication withheld was not a conviction, but
circuit precedent held that it was. Id. at 1132-33.
The Florida Supreme Court responded that “for purposes
of section 790.23(1)(a), a guilty plea for a felony for which
adjudication was withheld does not qualify as a
‘conviction.'” Clarke v. United
States, 184 So.3d 1107, 1108 (Fla. 2016)
(“Clarke II”). Thus, in keeping with
Florida law, the Eleventh Circuit vacated defendant Bobby
Jenkins's conviction under 18 U.S.C. § 922(g) for
possession of a firearm by a convicted felon. Clarke
III, 822 F.3d at 1214. However, in neither Clarke
III nor Matchett did the Eleventh Circuit
declare any statutes to be unconstitutionally vague.
Moreover, Clarke III does not apply to Petitioner
because he was in fact adjudicated guilty of the prior
offense underlying his § 922(g) conviction, i.e., a 1998
adjudication of guilt for the sale or delivery of cocaine.
Presentence Investigation Report at ¶ 42. As such,
neither Clarke III nor Matchett entitles
Petitioner to relief.