UNITED STATES OF AMERICA v. TIMOTHY LEE PITT (2017)

ORDER DENYING A CERTIFICATE OF APPEALABILITY

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 See United States v. Teague, No. 16-7056, __ F. App'x __, 2016 WL 4400069, at *1-2 (10th Cir. Aug. 17, 2016) (unpublished) (denying a certificate of appealability because Johnson did not affect the sentence enhancement under 18 U.S.C. § 924(c) for possessing a weapon during and in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 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

FOOTNOTES

1.   Teague is persuasive, but not precedential.

Robert E. Bacharach Circuit Judge