United States District Court, E.D. North Carolina, Southern Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (DE 53), pursuant to United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). The government has filed a motion to dismiss (DE 56, 58), to which petitioner has responded. The court held this matter in abeyance pending decision in Miller v. United States , 735 F.3d 141 (4th Cir. 2013), and then directed supplemental briefing, which has been received. In this posture, the matter is ripe for ruling. For the reasons stated below, the court directs further briefing.
Petitioner pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. On January 6, 2010, petitioner was sentenced to a term of 180 months imprisonment. In calculating the sentence, petitioner was subjected to a statutory minimum penalty of 180 months imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), on the basis that he had three previous convictions for a violent felony or a serious drug offense. Petitioner appealed and the court of appeals affirmed his conviction on December 8, 2010. On August 13, 2012, petitioner filed the instant motion pursuant to 28 U.S.C. § 2255, arguing that his sentence enhancement as an armed career criminal was erroneous in light of Simmons. The government contends that petitioner's motion is without merit because petitioner would still be sentenced as an armed career criminal following Simmons.
A. Standard of Review
In considering a motion to dismiss under Rule 12(b)(6), the court must determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the [petitioner], " but does not consider "legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual enhancement[, ]... unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 255 (4th Cir. 2009) (internal quotations omitted).
The Armed Career Criminal Act imposes a minimum sentence of fifteen years if a defendant has three prior convictions for "serious drug offense[s]" or "violent felon[ies]." 18 U.S.C. § 924(e)(1). The term "serious drug offense" means, in pertinent part, a drug offense under state law "for which a maximum term of imprisonment of ten years or more is prescribed by law." § 924(e)(2)(A). A "violent felony" includes "burglary, arson, or extortion." § 924(e)(2)(B).
Petitioner's presentence report identified four prior convictions as qualifying predicate convictions for purposes of the Armed Career Criminal Act. The presentence report includes the following information about these convictions:
1. Burning of an Uninhabited House (F) - 80CRS25320 - Robeson County Superior Court, Lumberton, NC - 02/24/1981: Pled guilty - 10 to 20 years custody....
2. 1) Possess With Intent to Sell or Deliver a Controlled Substance (LSD) (F) - 80CRS23589 - 2) Possession With Intent to Sell or Deliver a Controlled Substance (F) (3 counts) - 3) Sell and Deliver a Controlled Substance (F) (2 counts) - 80CRS23590, 80CRS23591, and 80 CRS24194-Robeson County Superior Court, Lumberton, NC - 02/05/1981: Pled guilty 1) 5 years custody, consecutive to 80CRS23590, 80CRS23591, and 80CRS24194 - 2 and 3) 2 to 4 years custody....
3. Possession With Intent to Sell and Deliver Cocaine (F) - Sell or Deliver Cocaine (F) - 87CRS9451 - Robeson County Superior Court, Luberton, NC - 09/29/1987: Pled guilty - 5 years custody, suspended, 4 years probation....
4. Possession With Intent to Sell and Deliver Cocaine (F) Sell or Deliver Cocaine (F) - 88 CRS2607 - Possession with Intent to Sell and Deliver Marijuana (F) Sell or Deliver Marijuana (F) - 88CRS2609 - Robeson County Superior Court, ...