United States v. Pitt ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 12, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 16-8078
v. (D.C. No. 1:16-CV-00173-SWS
& No. 2:13-CR-00217-SWS-1)
TIMOTHY LEE PITT, (D. Wyo.)
Defendant-Appellant.
_________________________________
ORDER DENYING A CERTIFICATE OF
APPEALABILITY
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Mr. Timothy Lee Pitt was convicted of federal drug offenses,
including the use of a firearm during and in relation to a drug trafficking
crime. See 18 U.S.C. § 924(c)(1)(A). For this crime, Mr. Pitt obtained a
mandatory sentence enhancement of 60 months. Following sentencing, Mr.
Pitt moved to vacate his 60-month sentence enhancement, invoking 28
U.S.C. § 2255.
The district court denied this motion, and Mr. Pitt wants to appeal.
To do so, he seeks a certificate of appealability and leave to proceed in
forma pauperis. We decline to issue a certificate of appealability, dismiss
the appeal, and deny leave to proceed in forma pauperis.
To obtain a certificate of appealability, Mr. Pitt must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2012). Mr. Pitt would meet this standard only if “jurists of
reason could disagree with the district court’s resolution of his
constitutional claims or . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
In his motion, Mr. Pitt argues that 18 U.S.C. § 924(c)(1)(A) is void
for vagueness under Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551
(2015). Johnson held that the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was void for vagueness. Id. at
__, 135 S. Ct. at 2563.
Mr. Pitt’s sentence enhancement was based on the use of a firearm
during a drug trafficking offense under 18 U.S.C. § 924(c)(1)(A). Section
924(c)(1)(A) provides a mandatory sentence enhancement for the use of a
firearm in relation to any “crime of violence” or “drug trafficking crime.”
But Mr. Pitt’s sentence enhancement was based on a “drug trafficking
crime,” not a “crime of violence,” so Johnson does not apply. See United
States v. Teague, No. 16-7056, __ F. App’x __, 2016 WL 4400069, at *1-2
(10th Cir. Aug. 17, 2016) (unpublished) (denying a certificate of
appealability because Johnson did not affect the sentence enhancement
under 18 U.S.C. § 924(c) for possessing a weapon during and in relation to
2
a “drug trafficking crime”). 1 Because Johnson does not apply, jurists could
not reasonably debate the correctness of the district court’s disposition. In
these circumstances, we decline to issue a certificate of appealability and
dismiss the appeal. In light of the absence of a reasonably debatable appeal
point, we also deny leave to proceed in forma pauperis. See 28 U.S.C.
§ 1915(a)(3); Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1079
(10th Cir. 2007).
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
Teague is persuasive, but not precedential.
3