United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON UNITED STATES DISTRICT JUDGE
a federal inmate proceeding pro se, submitted this
motion under 28 U.S.C. § 2255 ("§ 2255 Motion,
" ECF No. 29) to vacate, set aside, or correct his
sentence. Petitioner asserted that, in light of the Supreme
Court's recent decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), his enhanced sentence
under the United States Sentencing Guidelines
("USSG") for his conviction of illegal reentry is
unconstitutional. Specifically, Petitioner argues that his
prior conviction for aggravated assault no longer qualifies
as a predicate "crime of violence" to enhance his
sentence under the guidelines. (§ 2255 Mot. 5-6.)
However, Petitioner is incorrect.
was convicted of Illegal Reentry under 8 U.S.C. §
1326(a) and (b)(2) and received a 16-point sentencing
enhancement under USSG § 2L1.2(b)(1)(a)(ii) for
reentering the United States after being convicted of a
"crime of violence, " specifically, aggravated
assault. (Presentence Investigation Report Wksht. A, ECF No.
25). At the time of Petitioner's sentencing, USSG §
2L1.2(b)(1)(A)(ii)'s corresponding commentary stated:
"Crime of violence" means any of the following
offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including where consent to the conduct is not given
or is not legally valid, such as where consent to the conduct
is involuntary, incompetent, or coerced), statutory rape,
sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a dwelling, or
any other offense under federal, state, or local law that has
as an element the use, attempted use, or threatened use of
physical force against the person of another.
U.S. Sentencing Guidelines Manual § 2L1.2 cmt.
n.l(B)(iii) (U.S. Sentencing Comm'n 2010) (emphasis
contends that after Johnson, his prior conviction
for aggravated assault no longer qualifies as a crime of
violence to enhance his sentence. Petitioner's argument
lacks merit because Petitioner's prior conviction for
aggravated assault is an enumerated offense in the
commentary. See United States v. Martinez-Bahena,
No. 14-10062-01- EFM, 2016 WL 6948062, at *3 (D. Kan. Nov.
28, 2016). Accordingly, Johnson is inapplicable to
Petitioner's enhanced sentence for illegal reentry.
Id.; cf. United States v. Perez-Belmares, 670
F.App'x 330, 330-31 (5th Cir. 2016) (holding that
Johnson was inapplicable when prisoner received
16-point enhancement under USSG § 2L1. for prior
conviction specifically enumerated as crime of violence in
Government has moved for an extension of time to file its
Motion to Dismiss. (ECF No. 33.) Because there is no
prejudice to Petitioner, the Motion (ECF No. 33) will be
granted to the extent that the Motion to Dismiss will be
deemed timely filed. The Government's Motion to Dismiss
(ECF No. 32) will be granted. The Clerk will be directed to
terminate the remaining outstanding motions (ECF Nos. 27,
30). The action will be dismissed, and the Court will deny a
certificate of appealability.
appropriate Order shall issue.
 As the Supreme Court has
[u]nder the Armed Career Criminal Act
["ACCA"] ¶ 1984, a defendant convicted of
being a felon in possession of a firearm faces more severe
punishment if he has three or more previous convictions for a
"violent felony, " a term defined to include any
felony that "involves conduct that presents a
serious potential risk of physical injury to
Johnson, 135 S.Ct. at 2555 (emphasis added)
(quoting 18 U.S.C. § 924(e)(2)(B)). This part of the
definition of violent felony "ha[s] come to be known as
the Act's residual clause." Id. at 2556.
The Johnson Court held "that imposing an
increased sentence under the residual clause of the [ACCA]
violates the Constitution's guarantee of due
process." Id. at 2563.
 Even if Petitioner attempted to
challenge his prior conviction for aggravated assault under
the enumerated offense or force clause, challenges to the
calculation of his sentence under the guidelines fail to
state a claim cognizable for § 2255 relief. See
Lee, 855 F.3d at 246-47; United States v.
Foote,784 F.3d 931, 939-43 (4th Cir. 2015) (holding
that career offender designation is not a fundamental defect
that results in a complete miscarriage of justice to warrant
review of a sentence); United States v. Pregent, 190
F.3d 279, 283-84 (4th Cir. 1999) (explaining that