United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK, UNITED STATES DISTRICT JUDGE
a federal inmate proceeding with counsel, submitted this
motion under 28 U.S.C. § 2255 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") as a career offender and for firearms
offenses is unconstitutional. "Recently, the
Supreme Court concluded that the Guidelines are not subject
to a vagueness challenge under the Due Process Clause....
[and that] Johnson's vagueness holding does not
apply to the residual clause in [USSG] § 4B
1.2(a)(2)." United States v. Lee, 855 F.3d 244,
246-47 (4th Cir. 2017) (citation omitted). Thus,
Petitioner's claim lacks merit. Accordingly, the
Government's Motion to Dismiss (ECF No. 42) will be
GRANTED. The § 2255 Motion (ECF No. 36) will be DENIED.
The action will be DISMISSED. A certificate of appealabilty
will be DENIED.
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.
 Under USSG § 4B1.1, a defendant
is subject to an enhanced sentence if he has two or more
prior felony offenses for either a controlled substance
offense or a crime of violence. Under the version of §
4B 1.2(a) used at Petitioner's May 2015 sentencing, a
"crime of violence" was defined as:
[A]ny offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
United States Sentencing Guidelines Manual
§ 4B 1.2(a) (U.S. Sentencing Comm'n 2014).
Similarly, under Chapter 2 of the USSG, defendants are
assigned a base offense level for the sentencing guidelines
based upon offense conduct. Petitioner received an enhanced
base offense level of 24 under USSG § 2K2.1(a)(2)
because he "committed any part of the instant offense
subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance
offense." USSG § 2K2.1(a)(2) (2014). For the
purposes of this section, crime of violence "has the
meaning given that term in § 4B 1.2(a)." USSG
§ 2K2.1 cmt. n.1 (emphasis omitted). Thus, USSG §
2K2.1(a)(2) utilized the same definition for "crime of
violence" as contained in the career offender guidelines
and both mirrored ACCA's residual clause.
 Petitioner also argues that his 2009
conviction for first degree assault fails to qualify as a
crime of violence under the "force clause" or
"enumerated offenses" clause of USSG §
4B1.1(2) or under USSG § 2K2.1(a)(2). However, these
challenges to his career offender enhancement or base offense
level under the guidelines are not cognizable under 28 U.S.C.
§ 2255. 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), cert,
denied,135 S.Ct. 2850 (2017); United States v.
Pregent,190 F.3d 279, 283-84 (4th Cir. 1999)