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Cabble v. United States

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

May 12, 2015

DAMIEN MAURICE CABBLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 3:09-cr-00084-MR-1

MEMORANDUM OF DECISION AND ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court on the Petitioner's "Motion to Vacate Conviction and Sentence under 28 U.S.C. § 2255(f)(2) or § 2255(f)(4)." [Doc. 1].

I. BACKGROUND

On April 22, 2009, the Petitioner was charged in a Bill of Indictment with one count of conspiracy to distribute and possess with intent to distribute of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C) (Count One); three counts of distribution of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) (Counts Two, Four, and Ten); one count of possession with intent to distribute of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) (Count Three); one count of possession of one or more firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (Count Five); one count of possession of one or more firearms in furtherance of one or more drug trafficking crimes, in violation of 18 U.S.C. § 924(c) (Count Six); one count of conspiracy to distribute and possess with intent to distribute at least five grams of a mixture and substance containing a detectable amount of crack cocaine, in violation of 21 U.S.C. § 846 and 841(b)(1)(B) (Count Seven); one count of conspiracy to manufacture at least five grams of a mixture and substance containing a detectable amount of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count Eight); one count of distribution of at least five grams of a mixture and substance containing a detectable amount of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count Nine); and one count of distribution of at least 50 grams of a mixture and substance containing a detectable amount of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count Eleven).[1] [Criminal Case No. 3:09-cr-00084-MR ("CR"), Doc. 8: Indictment].

On July 29, 2009, the Petitioner entered into a written plea agreement with the Government, whereby the Petitioner agreed to plead guilty to Counts Six and Eleven in exchange for the Government agreeing to dismiss the remaining counts in the Bill of Indictment. [CR Doc. 25 at 1]. In the agreement, the Petitioner acknowledged that if the Probation Office determined from the Petitioner's criminal history that the career offender provision or armed career criminal provision of the U.S. Sentencing Guidelines should apply, such provision may be used in determining his sentence. [Id. at 3]. Further, in exchange for the concessions made by the Government in the plea agreement, the Petitioner agreed to waive all rights to appeal or collaterally attack his conviction and sentence except for claims of ineffective assistance of counsel or prosecutorial misconduct. [Id. at 6].

On August 6, 2009, the Petitioner appeared before the Honorable David S. Cayer, United States Magistrate Judge, for a Rule 11 hearing. The Petitioner was placed under oath and confirmed that his mind was clear and that he wished to plead guilty to Counts Six and Eleven as set forth in the Bill of Indictment; that he was in fact guilty of the Counts to which he was pleading guilty; that he understood the terms of the plea agreement; that he understood that he was expressly waiving the right to appeal his conviction and sentence or to attack the same in a post-conviction proceeding; that he was not threatened, intimidated or forced into pleading guilty; that no one had made any promises of leniency or a light sentence in order to induce him to plead guilty; that he had an ample opportunity to discuss the case with his attorney; and that he was entirely satisfied with the services of his attorney. [CR Doc. 29: Entry and Acceptance of Guilty Plea at 1-4]. The Court further questioned counsel, who confirmed that he had reviewed the plea agreement with the Petitioner and was satisfied that he understood the terms thereof. [Id. at 5]. Based upon the representations and answers given by the Petitioner and his counsel, the Court found that the Petitioner's guilty plea was knowingly and voluntarily made and the Court therefore accepted his guilty plea. [Id.].

Prior to the Petitioner's sentencing, the United States Probation Office prepared a Presentence Report (PSR). In calculating the Petitioner's total offense level, the probation officer recommended that the Petitioner be designated as a career offender pursuant to U.S.S.G. § 4B1.1. As a result, the Petitioner's base offense level rose from 30 to 37 [CR Doc. 38: PSR at ¶¶ 22, 28], and his criminal history category increased from a category III to a category VI [Id. at ¶ 45]. With a three-level reduction for acceptance of responsibility, the probation officer recommended a total offense level of 34. [Id. at ¶ 30]. Adding the mandatory minimum consecutive penalty required by 18 U.S.C. § 924(c) for Count Six[2] to the minimum and maximum of the otherwise applicable Guideline range determined for Count Eleven, the probation officer calculated an advisory Guideline range of 322-387 months' imprisonment. [Id. at ¶¶ 32, 78].

The Court conducted the Petitioner's sentencing hearing on June 7, 2010. The Government moved for a downward departure pursuant U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), recommending that the advisory Guideline range be reduced to 188-235 months plus a 60 months' consecutive sentence for the § 924(c) count. [Doc. 42]. The Court granted the Government's motion and sentenced the Petitioner to a term of 188 months' imprisonment on Count Eleven to run consecutively with a term of 60 months' imprisonment on Count Six, for a total term of 248 months. [CR Doc. 43: Judgment].[3]

The Petitioner did not file a direct appeal. Instead, on July 30, 2012, he filed the present motion pursuant to 28 U.S.C. § 2255. [Doc. 1].[4] In his motion, the Petitioner argues that, pursuant to the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), his prior North Carolina convictions were not felony offenses and therefore he no longer qualifies as a career offender pursuant to U.S.S.G. § 4B1.1. [Id.].

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. Having considered the record in this matter, the Court finds it is clear that Petitioner is not entitled to relief, and therefore, no response is necessary from the Government and no evidentiary hearing is required. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

III. DISCUSSION

A. Petitioner's Motion is Barred by the Appellate Waiver

The Court first considers whether the Petitioner's motion to vacate is barred by the appellate waiver ...


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