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Powell v. United States

United States District Court, W.D. North Carolina, Charlotte Division

November 26, 2014

JAMES POWELL, Petitioner,


FRANK D. WHITNEY, Chief District Judge.

THIS MATTER is before the Court on an initial review of Petitioner's pro se motion to vacate, set aside or correct his sentence which is filed pursuant to the provisions of 28 U.S.C. § 2255. For the reasons that follow, the § 2255 motion will denied and dismissed.


On December 13, 2011, Petitioner and a co-defendant were indicted in this district on one count of knowingly conspiring to obstruct, delay and affect the commerce of a business that sold jewelry, watches, tools, electronics and other merchandise affecting commerce, all in violation of 18 U.S.C. § 1951 (Count One). In Count Two, Petitioner and his co-defendant were charged with a Hobbs Act violation for knowingly and unlawfully affecting commerce, as defined in 18 U.S.C. § 1951(b)(3), and the movement of articles and commodities in commerce during the course of a robbery at the Central Avenue Jewelry and Pawn, in Charlotte. The indictment alleged that Petitioner and his co-defendant attempted to take personal property which included a.357 Magnum revolver and four cell phones from and in the presence of persons, against their will, and by means of threatened and actual force, violence, and aiding and abetting the same, all in violation of 18 U.S.C. §§ 1951 and 2. In Count Three, the grand jury charged that Petitioner and his co-defendant aided and abetted each other, during and in relation to a crime of violence, that is, through the Hobbs Act robbery. Further, the indictment charged that during this robbery, each defendant knowingly used and carried a handgun, and in furtherance of such crime of violence, did possess and brandish the firearm, all in violation of 18 U.S.C. §§ 924(c) and 2. Finally, Petitioner was named as the sole defendant in Count Four and charged with being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (3:11-cr-403, Doc. No. 1: Indictment).

Following the return of the indictment, Petitioner was arrested and the court appointed counsel during his initial appearance. Petitioner decided to enter a straight-up plea to all four counts in his indictment and he appeared before U.S. Magistrate Judge David S. Cayer for a Plea and Rule 11 hearing where he was placed under oath. The Government summarized the four charges pending against him, and the court confirmed that Petitioner had discussed the elements of the charged offenses with his attorney and that he understood each charge, that he understood the maximum penalties upon conviction, and that he had discussed any possible defenses to the charges with his attorney. Petitioner acknowledged that he was in fact guilty of the conduct charged in each of the four offenses and that he was waiving his right to contest the charges in a jury trial. The court accepted Petitioner's plea after finding that Petitioner's decision to plead guilty was knowingly and voluntarily made. (Id., Doc. No. 30: Acceptance and Entry of Guilty Plea).

The U.S. Probation Office prepared a presentence investigation report (PSR) in advance of Petitioner's sentencing hearing. (Id., Doc. No. 42: PSR). The PSR grouped Counts 1, 2 and 4 for guideline calculation purposes pursuant to U.S. Sentencing Guidelines Manual (USSG) § 3D1.2(c) (2012). This yielded a base offense level of 20 for these convictions and the probation officer calculated an adjusted offense level of 24. After noting a three-level reduction for acceptance of responsibility Petitioner's total offense level was 21, and with a criminal history category of V, Petitioner's Guidelines range was 70 to 87 months followed by the mandatory consecutive term of 84-months' imprisonment for conviction on Count Three. See USSG § 2K2.4(b).

On June 4, 2013, Petitioner appeared with counsel for his sentencing hearing and was sentenced to concurrent terms of 78-months in prison on Counts One, Two and Four, and a mandatory consecutive term of 84-months for conviction on Count Three for a total term of 162-months' imprisonment. (Id., Doc. 55: Amended Judgment). Petitioner did not appeal. This § 2255 proceeding follows and Petitioner's claims will be examined below.


Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. After having considered the record in this matter, the Court finds that no response is necessary from the United States. Further, the Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


A. First Claim

In his first claim for relief, Petitioner contends that his conviction for the robbery of Central Avenue Jewelry and Pawn must be set aside because the pawnshop was not engaged in interstate commerce as that term is defined in 18 U.S.C. § 1951. In sum, Petitioner argues that this Court lacked subject matter jurisdiction to enter the judgment of conviction because there was no violation of federal law based on his contention that the interstate commerce element of the crimes was absent. This argument will be rejected for three reasons.

First, Petitioner appeared for his Plea and Rule 11 hearing and the elements of each of the four counts in his indictment were summarized by the Government and Petitioner averred that he had discussed each of the charges with his attorney, and that he understood the charges. Based on his solemn admission of guilt, Petitioner has therefore admitted that the pawnshop was engaged in interstate commerce and he is now foreclosed from contesting this element of the offense. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) ("For the representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.").

Second, the PSR specifically found that the investigation into the offenses charged in Petitioner's indictment involved the obstruction and interference with interstate commerce. In Count Two of Petitioner's indictment it is alleged that Petitioner and his co-defendant took and attempted to take a Rossi.357 Magnum revolver, one Blackberry cell phone, and three other cell phones through actual and threatened force. (3:11-cr-403, Doc. No. 1: Indictment at 1). The PSR noted that the investigation provided evidence that none of these items were manufactured in North Carolina, a finding which Petitioner did not object to during his criminal proceeding, and the Court found that the evidence in the PSR was reliable. (Id., Doc. No. 42 ¶ 11). In addition, the PSR provided evidence - to which Petitioner did not object during his criminal proceeding - that Central ...

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