United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE
the court is petitioner Duel Anthony Cobb's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. ECF No. 48. Because Cobb was not sentenced
under the Armed Career Criminal Act (“ACCA”) or
under a federal statute or sentencing guideline that
incorporates a crime-of-violence definition, the U.S. Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015) is inapplicable to his sentence. The
court will therefore deny his motion and deny him a
certificate of appealability.
24, 2012, Cobb pled guilty to one count of possession with
intent to distribute a controlled substance under 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(viii) and one count of possession
of a firearm in relation to a drug-trafficking offense. ECF
No. 38; see also ECF No. 1. On November 1, 2012,
this court sentenced him to a total of 170 months of
imprisonment. ECF Nos. 41-42.
Johnson v. United States and subsequent challenges
argues that he is entitled to relief under Johnson v.
United States. There, the U.S. Supreme Court ruled that
a portion of the ACCA's violent-felony definition, often
referred to as the “residual clause, ” was
unconstitutionally vague (i.e., “void for
vagueness”). Johnson, 135 S.Ct. at 2557. The
ACCA applies to certain defendants charged with unlawful
possession of a firearm under 18 U.S.C. § 922(g), such
as being a felon in possession of a firearm under §
922(g)(1). 18 U.S.C. § 924(e). The Supreme Court
subsequently held that Johnson announced a new
substantive rule that applied retroactively to cases on
collateral review, Welch v. United States, 136 S.Ct.
1257 (2016), thus allowing defendants to challenge their ACCA
convictions under section 2255. See, e.g.,
United States v. Avery, No. 3:02-CR-113-LRH-VPC,
2017 WL 29667 (D. Nev. Jan. 3, 2017).
Johnson also sparked challenges to other federal
criminal statutes and sections of the U.S. Sentencing
Guidelines that incorporate a “crime-of-violence”
definition that includes a residual clause similar or
identical to the ACCA's. One such case is Dimaya v.
Lynch, 803 F.3d 1110 (9th Cir. 2015), cert.
granted, 137 S.Ct. 31 (2016). There, the Ninth Circuit
addressed a challenge to the residual clause found in 18
U.S.C. § 16(b), which is similar but not identical to
the ACCA's residual clause. Dimaya, 803 F.3d at
1111-12. The court ultimately held that section 16(b)'s
clause was also void for vagueness. Id. at 1119.
and Dimaya have also led to challenges to the
residual clause found in 18 U.S.C. § 924(c), which is
nearly identical to the section 16(b) residual clause that
the Ninth Circuit held void for vagueness in Dimaya.
While a challenge to section 924(c) is currently before the
Ninth Circuit, the court has deferred ruling on the issue
until the Supreme Court decides Dimaya. United States v.
Begay, No. 14-10080, ECF No. 87 (9th Cir. 2017); see
also United States v. Begay, 2016 WL 1383556 (9th Cir.
to 28 U.S.C. § 2255, a prisoner may move the court to
vacate, set aside, or correct a sentence if “the
sentence was imposed in violation of the Constitution or laws
of the United States, or . . . the court was without
jurisdiction to impose such sentence, or . . . the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). “Unless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court shall cause notice thereof
to be served upon the United States attorney, grant a prompt
hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect thereto.”
Id. § 2255(b).
is not entitled to relief
18 U.S.C. § 924(c)(1)(A), it is a felony to use or carry
a firearm “during and in relation to any crime of
violence or drug trafficking crime . . . .” This
statute therefore creates an offense separately punishable
from another concurrently-charged offense ...