United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on consideration of Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255 [Doc. 1]; Petitioner's Amended Motion to Vacate and Alternative Petition for Relief under 28 U.S.C. § 2241, for a Writ of Coram Nobis, or for a Writ of Audita Querela [Doc. 5]; the Government's Motion for Leave to File Out of Time [Doc. 14]; and the Government's Response [Doc. 13]. For the reasons that follow, Petitioner's motion to vacate will be granted in part and the Petitioner shall be resentenced without application of the statutory mandatory minimum of 240 months.
On June 2, 2009, the Petitioner was indicted by the Grand Jury for the Western District of North Carolina and charged with conspiracy to manufacture and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841. [Criminal Case No. 1:09-cr-00051, Doc. 3: Indictment].
On July 16, 2009, the Government filed an Information pursuant to 21 U.S.C. § 851 notifying Petitioner that it would seek enhanced penalties based on Petitioner's 2007 conviction for possession with intent to sell and deliver a Schedule II controlled substance, a Class H felony under North Carolina law. [ Id., Doc. 55]. The state court determined Petitioner's prior offense level to be II, and that he was to be sentenced within the presumptive range. Therefore, the maximum punishment he could have received for the 2007 conviction under North Carolina law was 10 months. N.C. Gen. Stat. § 15A-1340-17(c) and (d) (1996). The state court sentenced him to a term of 8 to 10 months, suspended. [Doc. 109 at 11].
In September 2009, Petitioner pled guilty to the conspiracy charge pursuant to a written plea agreement with the Government. In the plea agreement, the parties stipulated that the amount of methamphetamine known or reasonably foreseeable to Petitioner was at least 50 grams but less than 150 grams. [ Id., Doc. 81: Plea Agreement ¶ 6(a)].
Prior to sentencing, the probation officer prepared a presentence report (PSR), in which the probation officer calculated a total offense level of 25 and a criminal history category of III, resulting in an advisory Guidelines range of 70 to 87 months' imprisonment. [ Id., Doc. 109: PSR at 9, 11, 16]. Because of the § 851 notice, however, the probation officer noted that Petitioner faced a statutory mandatory minimum of 240 months. [Id. at 16].
Prior to Petitioner's sentencing hearing, the Government filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1 and 28 U.S.C. § 3553(e) based on Petitioner's substantial assistance. In its motion, the Government requested that the Court sentence Petitioner to 192 months in prison, which represented a 20% reduction. [ Id., Doc. 116]. On June 25, 2010, this Court held a sentencing hearing. The Court granted the Government's motion for a downward departure and sentenced Petitioner to a term of 180 months in prison. [ Id., Doc. 124]. Petitioner appealed, and the Fourth Circuit Court of Appeals affirmed this Court's Judgment, issuing its mandate on April 27, 2011. United States v. Arthur, 421 F.Appx. 279 (4th Cir. 2011).
On September 16, 2013, Petitioner filed a motion seeking relief based on the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). [ Id., Doc. 157]. The Court issued an Order pursuant to Castro v. United States, 540 U.S. 375 (2003), notifying the Petitioner that it intended to characterize Petitioner's filing as a motion to vacate pursuant to 28 U.S.C. § 2255. [ Id., Doc. 160]. On June 23, 2014, Petitioner, through counsel, filed an amended motion to vacate, seeking relief under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), arguing that the prior conviction used to trigger the higher mandatory minimum sentence was not punishable by more than one year in prison. The Government has responded to Petitioner's amended motion, agreeing that Petitioner is entitled to be resentenced without application of the statutory mandatory minimum of 240 months. [Doc. 13].
II. STANDARD OF REVIEW
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. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
A. Petitioner's Claim for Relief under Simmons
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), there is a one-year statute of limitations for filing a motion for ...