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Ussery v. United States

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

April 17, 2015

UNITED STATES OF AMERICA, Respondent. Criminal Case No. 1:11-cr-00032-MR-DLH-1



This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1].


On September 25, 2010, in Forest City, North Carolina, police officers confronted Petitioner Jonathan Maurice Ussery and his brother Walter Ussery in the parking lot of a Hardee's restaurant. [Criminal Case No. 1:11-cr-00032, Doc. 35 at 3: PSR]. The police officers were responding to a suspicious persons call from a manager at a nearby Arby's restaurant. [Id.]. The manager had called to report that Petitioner and his brother were in the Arby's restaurant and that they matched the description of two men who robbed a nearby restaurant several weeks earlier. [Id.]. During the encounter, officers asked Petitioner and his brother whether they were armed, at which point Walter Ussery reached for his right pants pocket and Petitioner grabbed his waistband. [Id. at 3-4]. At that point, one of the officers patted along the outside of Walter Ussery's waistband and discovered a gun, which the officer announced to his partner. [Id.]. In response to the warning, the other officer grabbed Petitioner's left hand, while at the same time accessing his handcuffs. [Id.]. As the officer tried to secure Petitioner, he jerked away and ran. [Id.]. During the initial struggle, Petitioner dropped a gun before continuing to flee. [Id.]. The officer eventually caught up with Petitioner and tackled him. [Id.].

While fighting and wrestling on the ground, the officer felt Petitioner grab for his service revolver, which was in a holster on the officer's belt. [Id.]. At one point, Petitioner, who was able to unfasten the top strap of the officer's holster, proclaimed, "I've got your gun." [Id.]. To keep the gun secure, the officer put pressure on it and angled his holster. [Id.]. As the struggle continued, Petitioner and the officer fell down an embankment to a residential area, where two onlookers came to the officer's aid and helped secure Petitioner. [Id.].

On April 5, 2011, the grand jury for the Western District of North Carolina charged Petitioner with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [ Id., Doc. 3: Bill of Indictment]. Petitioner subsequently pled guilty without a written plea agreement. [ Id., Doc. 29: Entry & Acceptance of Guilty Plea]. In preparation for sentencing, the probation officer prepared a presentence investigation report, calculating an advisory guidelines range of 100 to 120 months in prison, based on a total offense level of 27 and a criminal history category of IV. [ Id., Doc. 35 at 19]. In calculating Petitioner's offense level, the probation officer added (1) a four-level enhancement, under U.S.S.G. § 2K2.1(b)(6)(B), for possession of a firearm in connection with another felony offense - specifically, robbery of the Arby's restaurant; and (2) a six-level enhancement, under U.S.S.G. § 3A1.2(c)(1), for assaulting an officer during the course of the offense or immediate flight therefrom. [Id. at 6]. The probation officer also added two points to Petitioner's criminal history score, under U.S.S.G. § 4A1.1(d), because Petitioner was on supervised probation at the time of the offense. [Id. at 11]. Petitioner objected to the PSR, challenging, among other things, the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) and the addition of the two criminal history points under U.S.S.G. § 4A1.1(d). [ Id., Doc. 34: Petitioner's Objection to PSR].

At sentencing, this Court sustained the objection to the four-level enhancement[1] and overruled the challenge to the two criminal history points, resulting in an advisory guidelines range of 70 to 87 months in prison, based on a total offense level of 23 and a criminal history category of IV. [ Id., Doc. 40: Statement of Reasons; Doc. 48 at 12-17: Sent. Hr'g Tr.]. After hearing from both sides, this Court sentenced Petitioner to 79 months of imprisonment. [Id. at 35].

The Court entered judgment on October 26, 2012. [ Id., Doc. 39: Judgment]. Petitioner appealed, challenging the denial of a motion to suppress the firearm recovered after officers stopped Petitioner and his brother in the parking lot. The United States Court of Appeals for the Fourth Circuit affirmed in an unpublished opinion. United States v. Ussery, 575 Fed.App'x 161 (4th Cir. 2014).

Petitioner placed the instant motion to vacate in the prison system for mailing on November 24, 2014, and it was stamp-filed in this Court on December 1, 2014. In the motion to vacate, Petitioner claims that defense counsel was ineffective for (1) failing to challenge the application of the sixlevel enhancement for assault on a law enforcement officer, and (2) failing to challenge the addition of two criminal history points for committing the offense while on probation.


Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings..." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the motion to vacate can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


A. Petitioner's Claims of Ineffective Assistance of Counsel

The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend. VI. To show ineffective assistance of counsel, Petitioner must first establish a deficient performance by counsel and, second, that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is "a strong presumption that counsel's conduct falls within ...

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