REPORT AND RECOMMENDATION

G. R. SMITH, Magistrate Judge.

Leonardo Moreno Romero brings what the Government concedes is a timely filed, first 28 U.S.C. § 2255 motion in which he seeks to exploit the new rule announced in Johnson v. United States, ___ U.S. ____, 135 S.Ct. 2551 (2015), made retroactive by Welch v. United States, ___ U.S. ____, 136 S.Ct. 1257 (2016). CR413-129, doc. 239; doc. 243 (Government's response brief). Following his guilty plea, this Court sentenced him to 100 months' imprisonment for violating 18 U.S.C. § 922(g)(5)(A) (illegal alien in possession of a firearm), with his sentence enhanced under 18 U.S.C. § 924(c)(1)(A) for carrying a firearm during/in relation to a drug trafficking crime.2 Doc. 152 at 1-2; doc. 155 at 10.

The Armed Career Criminal Act (ACCA) — the statute Johnson addressed — falls under an entirely different provision of § 924, § 924(e), not 924(c). The ACCA provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g) and (2) have "three prior convictions . . . for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" as, among other things, a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at § 924(e)(2)(B)(i). Johnson found that "residual" clause so vague that it violates due process. See 135 S. Ct. at 2557. But crimes falling under that provision's other clauses, known as the "elements and "enumerated crimes" clauses,3 are not affected by Johnson's holding. Id. at 2563.4

Moreno-Romero's 100-month sentence was enhanced not by § 924(e)(2)(B)(i), but by § 924(c)(1)(A). Doc. 152 at 1 (Judgment); PSR at 9 ¶ 28. Boiled down, he argues that his conviction under § 924(c)(1)(A) fetched application of § 924(c)(3)(B) to him, and since § 924(c)(3)(B) equates to the § 924(e)(2)(B)(ii) residual clause invalidated by Johnson, his enhanced sentence likewise should be invalidated. Doc. 247.

In that regard, "it [has been] an open question whether Johnson applies to the residual clause set out in 18 U.S.C. § 924(c)(3)(B)." Sams, 2016 WL 3997213 at * 3; see also Duhart, 2016 WL 4720424 at * 6 (it does); supra n.4. It is conceivable, the Government allows, that § 924(c)(3)(B)'s "definition of `crime of violence' so echoes the residual-clause portion of the ACCA's definition of `violent felony' that Johnson invalidates it, too." Doc. 243 at 3. But § 924(c)(3)(B), it points out, was never applied to Moreno-Romero. Id. Indeed, "the predicate for Moreno-Romero's § 924(c) conviction was not a `crime of violence.' Instead, it was a `drug trafficking crime," so the "non-residual-clause" portion of § 924(c), specifically § 924(c)(2), was applied. Id.

The Government is correct. The indictment charged, as the predicate crime:

Doc. 3 at 8-9 (emphasis added and omitted).

As set forth supra n. 2, the § 924(c) definition of a "drug trafficking crime" is separately defined in § 924(c)(2), and in a way that includes none of the problematic residual-type language at issue in Johnson. See 18 U.S.C. § 924(c)(1)(A); id. § 924(c)(2) ("any felony punishable under the Controlled Substances Act . . . the Controlled Substances Import and Export Act . . . or chapter 705 of title 46"). Johnson thus has no conceivable application in that context, so Moreno-Romero's § 2255 motion must be DENIED. United States v. Parnell, 2016 WL 3230697 at * 4 (3rd Cir. June 13, 2016) ("Johnson does not call into question [§ 924(c)(2)'s] unambiguous definition of "drug trafficking crime.").5

An additional basis supports denial, though the Government does not raise it: Waiver. Subject to exceptions not applicable here, Moreno-Romero waived his direct and collateral appeal rights, Doc. 151 at 6, and has not claimed that this waiver was not made knowingly and voluntarily. The unobjected to PSR pointed out that he benefited from that. PSR (Sentencing Recommendation) at 2 ("Had the defendant not waived his appeal rights, a sentence at the top of the advisory guideline range would have been recommended."). And this Court noted the waiver when it sentenced him. Doc. 155 at 14-15. Absent any sufficiently pled claim that the double-waiver was not made knowingly and voluntarily, it is being enforced. See Winthrop-Redin v. United States, 767 F.3d 1210, 1219-20 (11th Cir. 2014); Jones v. United States, 2016 WL 3476429 at *3 n.4 (S.D. Ga. June 21, 2016). Movant's § 2255 motion therefore is barred, and thus fails on this additional basis. Omoniyi v. United States, 2016 WL 4523170 at * 2-3 (S.D. Ga. Aug. 11, 2016).

Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.") (emphasis added). Any motion for leave to appeal in forma pauperis therefore is moot.

SO REPORTED AND RECOMMENDED.