United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger, United States District Judge
matter is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255 [CV Doc. 1] and the Government's Motion to Dismiss
[CV Doc. 4].
December 2011, Petitioner Robert Lyle Hitt was charged in a
Bill of Indictment with knowingly and intentionally
possessing with intent to distribute methamphetamine in
violation of 21 U.S.C. § 841(a)(1) (Count One), and
knowingly possessing firearms in furtherance of a
drug-trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A) (Count Three). [CR Doc. 11: Indictment].
Petitioner agreed to plead guilty to Count One, in exchange
for the Government dismissing Count Three. [See CR
Doc. 30 at ¶¶ 1-2: Plea Agrmt.]. As part of the
plea agreement, Petitioner also agreed to waive the right to
contest his conviction or sentence on direct appeal or in any
post-conviction proceeding, except as to claims of
ineffective assistance of counsel or prosecutorial
misconduct. [Id. at ¶¶ 18-19; CR Doc. 85
at 17-18: Plea Tr.]. At the plea hearing, Petitioner affirmed
that he understood and agreed with the terms of his plea
agreement, including the appellate and post-conviction
waivers, and he stated that his plea was voluntary and not
the result of any outside promises or threats. [CR Doc. 85 at
probation officer prepared a presentence report (PSR),
recommending that Petitioner be sentenced at a total offense
level of 33 and a criminal history category of II. [CR Doc.
40 at ¶¶ 24, 28: PSR]. Petitioner had two criminal
history points stemming from a 2005 Alabama state conviction
for second-degree possession of marijuana. [Id. at
¶ 27]. Based on the recommended offense level and
Petitioner's criminal history, Petitioner's advisory
guidelines range was 151 to 188 months of imprisonment.
[Id. at ¶ 41].
objected to the PSR, arguing that he should only have
received one point for his prior conviction, as he was
sentenced as a youthful offender and did not serve any jail
time. [CR Doc. 41 at 1-2: Objection to PSR]. The Government
filed a sentencing memorandum, asserting that
Petitioner's youthful offender conviction was
appropriately awarded two criminal history points. [CR Doc.
52]. At sentencing, Petitioner provided the complaint for and
a case action summary of his prior conviction, again
asserting that he had not served any jail time for this
offense. [CR Doc. 83 at 10-11: Sent. Tr.]. This Court found
that the documents stated that Petitioner was sentenced to
sixty days in jail, but did not indicate that this sentence
was suspended. [Id. at 12]. Accordingly, the Court
overruled Petitioner's objection and adopted the PSR, but
stated that it would consider the issue when examining the 18
U.S.C. § 3553 factors and sentencing him. [Id.
at 18-20]. The Court then varied downward and sentenced
Petitioner to 144 months of imprisonment, noting that the
Court had essentially sentenced Petitioner as if he had no
criminal history. [Id. at 35-36].
did not file a timely notice of appeal. Instead, he filed a
§ 2255 motion arguing that his attorney had provided
ineffective assistance by not filing a timely notice of
appeal and challenging his criminal history score under
United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc). [CR Doc. 70]. This Court granted the §
2255 motion to the extent that the Court entered an amended
judgment to allow Petitioner to file a timely notice of
appeal, and the Court dismissed Petitioner's remaining
claims without prejudice. [CR Doc. 71 at 6-7].
this Court granted Petitioner an extension of time to file
his notice of appeal, Petitioner appealed to the Fourth
Circuit, arguing that this Court had erred in holding that
his prior conviction supported a criminal history category of
II and that he should be allowed to raise this issue despite
the appellate waiver in his plea agreement. See United
States v. Hitt, No. 15-4283, Doc. 16 (4th Cir.). The
Government moved to dismiss Petitioner's appeal based on
the waiver in his plea agreement. Id. at Doc. 23. In
October 2015, the Fourth Circuit dismissed the appeal,
holding that “the issue [Petitioner] seeks to raise on
appeal falls squarely within the compass of his waiver of
appellate rights.” [CR Doc. 90 at 1].
November 2015, this Court granted Petitioner's motion to
reduce his sentence pursuant to Sentencing Guidelines
Amendment 782 and reduced his sentence to 121 months of
imprisonment. [CR Doc. 92]. Petitioner then timely filed the
pending motion to vacate in this Court. [CV Doc. 1]. As
his sole claim, Petitioner contends that this Court
incorrectly calculated his criminal history score. On January
6, 2017, the Government filed a Response and accompanying
motion to dismiss, and on January 23, 2017, Petitioner filed
a pro se Reply. [CV Docs. 4, 5].
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 argument presented by Petitioner 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).
sole claim in his motion to vacate, Petitioner contends that
this Court incorrectly calculated his criminal history score.
Specifically, Petitioner contends that this Court erroneously
assigned Petitioner a criminal history category of II, rather
than I. As Petitioner argued at sentencing and on direct
appeal, Petitioner argues here that he should only have
received one criminal history point, rather than two, for his
2005 Alabama state conviction for second-degree possession of
marijuana, as he was sentenced as a youthful offender and did
not serve any jail time.
motion will be denied for several reasons. First, Petitioner
waived the right to challenge his sentence as part of his
plea agreement. [CR Doc. 30 at ¶¶ 18-19; CR Doc. 85
at 17-18]. A knowing and voluntary waiver of the right to
pursue post-conviction relief is enforceable. See United
States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).
Although Petitioner preserved the right to pursue claims of
ineffective assistance of counsel or prosecutorial
misconduct, he does not allege that either of those
exceptions applies here. Nor does Petitioner allege that the
waiver of his right to pursue post-conviction relief was
involuntary. Any such allegation would be frivolous because
it would contradict Petitioner's testimony at the plea
hearing, as well as the Fourth Circuit's ...