IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 11-0279-WS

 )

AARON DAVIS, )

 )

Defendant. )

ORDER

This matter comes before the Court on defendant’s Motion to Correct Sentence under 28 

U.S.C. § 2255 (doc. 183), filed in reliance on Johnson v. United States, --- U.S. ----, 135 S.Ct. 

2551, 192 L.Ed.2d 569 (2015), and Welch v. United States, --- U.S. ----, 136 S.Ct. 1257 (2016).

Defendant, Aaron Davis, entered a plea of guilty to one count of conspiracy to defraud 

the United States, in violation of 18 U.S.C. § 371, and one count of felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1). (See docs. 103 & 104.) At the sentencing hearing 

held on August 22, 2012, the undersigned adopted all recommended sentencing guideline 

findings contained in the Presentence Investigation Report (“PSR”). Those calculations fixed 

Davis’s base offense level at 24, with a four-level enhancement because of the number of 

firearms, a two-level enhancement because Davis possessed stolen firearms, and a four-level 

enhancement because Davis possessed a firearm in connection with another felony offense. 

After adjusting downward by three levels for acceptance of responsibility, Davis’s total offense 

level was calculated at 31.

When combined with his criminal history category of V, the resulting calculated 

guideline range was 168 to 210 months. The Court found that Davis was an armed career 

offender pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which 

would have subjected him to a mandatory minimum sentence of 180 months. At sentencing, 

however, the Court granted the Government’s motion for downward departure pursuant to 

U.S.S.G. § 5K1.1, as a result of which the ACCA mandatory minimum was rendered 

inapplicable. Davis ultimately was sentenced to a term of imprisonment of 120 months. (See 

doc. 152.)

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In his § 2255 Motion (the first he has ever filed in this case), Davis seeks the benefit of 

retroactive application of the Supreme Court’s holding in Johnson that “imposing an increased 

sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s 

guarantee of due process.” 135 S.Ct. at 2563. Apparently recognizing that the downward 

departure at sentencing took the ACCA mandatory minimum off the table, Davis nonetheless 

argues that his sentence should be vacated and a resentencing hearing should be held because he 

was sentenced under the Sentencing Guidelines’ armed career criminal provision, found at 

U.S.S.G. § 4B1.4.1 By its express terms, Davis’s § 2255 Motion turns on application of the 

Sentencing Guidelines’ armed career criminal guideline, and Davis’s contention that such 

enhancement is violative of Johnson here.

Eligibility for the armed career criminal guideline is directly linked to ACCA; indeed, the 

guideline defines “armed career criminal” as “[a] defendant who is subject to an enhanced 

sentence under the provisions of 18 U.S.C. § 924(e).” U.S.S.G. § 4B1.4(a). If Davis is no longer 

subject to an enhanced sentence under ACCA, then the armed career guideline should no longer 

apply. The Eleventh Circuit has recently so held in an unpublished decision. See United States 

v. Kirk, 636 Fed.Appx. 548, 551 (11th Cir. Jan. 28, 2016) (vacating sentence and remanding for 

resentencing because “Kirk is no longer subject to a statutory enhanced sentence under § 

924(e)(1), and thus § 4B1.4 no longer applies”). Nonetheless, Davis’s § 2255 Motion misses the 

mark. Simply put, the armed career criminal enhancement found at § 4B1.4 did not drive 

Davis’s original guideline calculations. To be sure, the PSR took § 4B1.4 into account in 

calculating his guideline range. (Doc. 146, ¶¶ 24-25.) But the PSR concluded that the Chapter 

Two offense level (i.e., the offense level calculated using the base offense level for the § 922(g) 

violation, plus applicable enhancements for specific offense characteristics pertaining to number 

of firearms, stolen firearms, and possession of firearms in connection with another felony)

governed because it resulted in a higher offense level (34) than the armed career criminal 

 1 Indeed, Davis posits that “[i]t follows from Johnson that the identical residual 

clause in the armed career offender provision (U.S.S.G. § 4B1.4(a)) is also void for vagueness,” 

and that one of the prior convictions used to apply § 4B1.4(a) was a “residual clause” offense, 

such that the armed career criminal provision of the Guidelines is no longer satisfied in his case 

after taking Johnson into account. (Doc. 183, at 2.)

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guideline would yield (33).2 As a practical matter, then, the armed career criminal provision of 

the Sentencing Guidelines did not factor into the computation of Davis’s guideline range, which 

would have been the same with or without consideration of § 4B1.4. Because Davis’s offense 

level and guideline range were unchanged by application of § 4B1.4, Davis is ineligible for 

resentencing under Johnson even if, as he argues, U.S.S.G. § 4B1.4 no longer applies to him 

post-Johnson because one of the predicate offenses identified at sentencing is properly 

disqualified as a “residual clause” offense.

In sum, Davis has filed a § 2255 Motion in which he argues that his sentence must be 

vacated because the residual clause of the armed career criminal guideline is unconstitutionally 

void for vagueness, pursuant to Johnson, and because he lacks sufficient predicate offenses 

under the enumerated offenses or elements clauses. But Davis was not sentenced under the 

armed career criminal guideline. Accordingly, even if all discussion of § 4B1.4 were eliminated 

from the PSR, Davis’s calculated guideline range would be unchanged. Section 4B1.4 of the 

Sentencing Guidelines neither drove nor even affected his sentence. For that reason, and given 

that the § 5K1.1 sentencing departure negated the impact of ACCA’s mandatory minimum in 

this case, Davis’s § 2255 Motion (doc. 183) is denied.

DONE and ORDERED this 1st day of July, 2016.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 2 Specifically, the PSR, which again was adopted by this Court at sentencing, stated 

the following: “Pursuant to U.S.S.G. § 4B1.4(a), a defendant who is subject to an enhanced 

sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal. Therefore, the 

base offense level would ordinarily be 33, pursuant to U.S.S.G. § 4B1.4(b)(3)(B). However, 

since the Chapter Two offense level is the higher of the two, the base offense level is 34.” (Doc. 

146, ¶ 25.)

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