UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

WILLIAM McARTHUR SMITH,

 CRIMINAL CASE NO. 14-CR-20794

Petitioner, CIVIL CASE NO. 16-CV-12576

v.

 DISTRICT JUDGE THOMAS L. LUDINGTON

UNITED STATES OF AMERICA, MAGISTRATE JUDGE PATRICIA T. MORRIS

Respondent.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON PETITIONER’S MOTION TO VACATE SENTENCE 

UNDER 28 U.S.C. § 2255

(Doc. 37)

I. RECOMMENDATION

For the following reasons, IT IS RECOMMENDED that Petitioner’s Motion to Vacate

Sentence (Doc. 37) be DENIED and that the civil case be DISMISSED.

II. REPORT

A. Introduction

On December 17, 2014, Petitioner pleaded guilty to Counts 1 and 2 of the information

charging distribution of a controlled substance and use of a firearm during and in relation to a drug

trafficking crime in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 9249c). (Doc. 20.) On April

6, 2015, judgment was entered and Petitioner was sentenced to 40 months on Count 1, and 60

months on Count 2, all to be served consecutively for a total of 100 months incarceration. (Doc.

26.) Petitioner did not file a timely appeal but sought leave to file a late notice and although that

motion was denied (Doc. 28), Petitioner filed a notice of appeal on August 4, 2015. (Doc. 30.) The

Sixth Circuit later dismissed his appeal, not based on the late notice, but rather because Petitioner

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failed to file a brief in support of his appeal so the Sixth Circuit dismissed his appeal for want of

prosecution. (Doc. 33.) 

On July 1, 2016, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence under

28 U.S.C. § 2255 and filed a supplemental brief on that same day. (Docs. 37, 39.) The court

considers both those documents to be in support of his motion. Petitioner’s sole argument in both

documents is that he is entitled to relief based on the United States Supreme Court’s decision in

Johnson v. United States, 135 S. Ct. 1551 (June 26, 2015). The government responds that Johnson

provides no relief for Petitioner because the predicate offense supporting Petitioner’s conviction

was a drug trafficking offense and because Sixth Circuit precedence has established that

convictions under §924(c) do not suffer fromthe same vagueness problemrecognized by the Court

in Johnson under §924(e). (Doc. 42.) For the reasons stated below, the government is correct. 

The motion has been referred to the undersigned. (Doc. 41.) Therefore, these motions are

ready for Report and Recommendation without oral argument. See E.D. Mich. LR 7.1(f)(2).

B. Analysis and Conclusion

In Johnson, the Supreme Court held that the Armed Career Criminal Act’s (ACCA’s)

residual clause, i.e., the clause that defines a “violent felony” to include an offense that “involves

conduct that presents a serious potential risk of physical injury to another” is unconstitutionally

vague and violates due process. 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court has further held

that Johnson has retroactive effect in cases on collateral review. Welch v. United States, 136 S. Ct.

1257, 1265 (2016); accord, In Re Watkins, 810 F.3d 375, (6th Cir. 2015).

The Sixth Circuit has held that since the United States Sentencing Guidelines (USSG) §

4B1.2 also contains a residual clause that is identical in wording to the residual clause in the

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ACCA, the Johnson rationale applies equally to the sentencing guidelines residual clause defining

a crime of violence. USSG § 4B1.2(a); United States v. Pawlak, No. 15-3566, 2016 WL 2802723,

at *8 (6th Cir. Mar. 13, 2016). The United States Supreme Court has granted certiorari in Beckles

v. United States, to decide whether the Johnson holding applies to the residual clause of the career

offender sentencing guidelines, and if so, whether it should apply retroactively on collateral

review. 136 S. Ct. 2510. 

However, Petitioner was not sentenced under the ACCA (§924(e)) or the equivalent

language in the career offender sentencing guideline provision. Instead, Petitionerwas charged and

convicted, via guilty plea, of using or carrying a firearm during and in relation to a drug trafficking

crime in violation of 18 U.S.C. § 924(c). (Doc. 20, 26.) 

The Sixth Circuit has held that the Johnson void-for-vagueness conclusion does not apply

to convictions under § 924(c)(3). In United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), the court

noted “several factors” that “distinguish the ACCA residual clause from § 924(c)(3)(B).” Id. at

376. “First, the statutory language of § 924(c)(3)(B)is distinctly narrower, especially in that it deals

with physical force rather than physical injury” because force is more definite than the risk of

physical injury to a victim. Id. at 376. In addition, § 924(c)(3)(B) requires that the risk of physical

force arise “in the course of committing the offense” and it requires that “the felony be one which

‘by its nature’ involves the risk that the offender will use physical force.” Id. at 377. The court also

noted that § 924(c)(3)(B) does not permit a “court to consider risk-related conduct beyond that

which is an element of the predicate crime” nor does its requirement that physical force be “used

in the course of committing the offense” permit “inquiry into conduct following the completion

of the offense.” Id. Instead, “the force msut be used and the risk must arise in order to effectuate

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the crime” in contrast to the ACCA provision which allows courts to consider “‘physical injury

[that] is remote from the criminal act,’a consideration that supported the Court’s vagueness

analysis in Johnson.” Id.

“Second, the ACCA residual clause is linked to a confusing set of examples that plagued

the Supreme Court in coming up with a coherent way to apply the clause, whereas there is no such

weakness in § 924(c)(3)(B).” Id. at 376. “Third, the Supreme Court reached its void-for-vagueness

conclusion only after struggling mightily for nine years to come up with a coherent interpretation

of the clause, whereas no such history has occurred with respect to § 924(c)(3)(B).” Id. Taylor has

been cited with favor by other Circuit Courts. See, e.g., United States v. Prickett, ___ F.3d ___,

2016 WL 5799691 (8th Cir. Oct. 5, 2016); United States v. Hill, 832 F.3d 135 (2nd Cir. 2016).

Thus, there is no Sixth Circuit or United States Supreme Court precedent showing that

Petitioner is entitled to any relief from his conviction or sentence under § 924(c)(3).

In addition, as noted by the government, Petitioner was not convicted under any provision

referring to crimes of violence but rather was convicted based on a predicate controlled substance

offense. Accordingly, none of the nuanced arguments pertaining to provisions defining crimes of

violence are of any relevance to Petitioner’s case. Accordingly, I recommend that the motion to

vacate be denied. (Doc. 37.)

III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 days after

being served with a copy of the recommended disposition, a party may serve and file specific

written objections to the proposed findings and recommendations. A partymay respond to another

party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 72(b)(2); see also

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28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140, 155; Howard v. Sec’y of Health & Human Servs., 932

F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The

parties are advised that making some objections, but failing to raise others, will not preserve all

the objections a party may have to this Report and Recommendation. Willis v. Sec’y of Health &

Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987). According to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this magistrate judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection

must recite precisely the provision of this Report and Recommendation to which it pertains. Not

later than 14 days after service of an objection, the opposing party may file a concise response

proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR

72.1(d). The response must specifically address each issue raised in the objections, in the same

order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the

Court determines that any objections are without merit, it may rule without awaiting the response.

Date: January 19, 2017 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

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CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through

the Court’s CM/ECF system which delivers a copy to all counsel of record. A copy was also

sent via First Class Mail to William McArthur Smith #50333-039 at Elkton Correctional

Institution, Inmate Mail/Parcels, P.O. Box 10, Lisbon, OH 44432.

Date: January 19, 2017 By s/Kristen Castaneda 

 Case Manager

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