United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr. 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, (Doc. No. 1), and on the Government's Motion to
Dismiss, (Doc. No. 3).
November 2013, Petitioner Shaun Isiah-Jeffrey Hinson and an
accomplice entered a Bank of America branch in Charlotte,
North Carolina, wearing ski masks and gloves, and wielding
handguns. (Id., Doc. No. 34 at ¶¶ 5-6:
PSR). They ordered everyone to lie down and then both men
leapt over the teller's counter and took almost $24, 000
in cash before fleeing. (Id. at ¶¶ 6-7). A
month later, Petitioner robbed another Bank of America branch
in Charlotte, this time taking over $42, 000 in cash.
(Id. at ¶ 9). Law enforcement officers were
able to identify Petitioner after police attempted to stop
his car for speeding over 120 miles per hour in Virginia.
(Id. at ¶ 11). Petitioner abandoned his car
after it got stuck when he attempted to cross over a median.
(Id.). However, when police searched the vehicle,
they found Petitioner's state identification card, gloves
matching those worn during the bank robberies, five Bank of
America money straps, and a loaded, 9mm handgun that looked
like the handgun used during the first robbery.
jury charged Petitioner with armed bank robbery, in violation
of 18 U.S.C. §§ 2113(a), (d) and 2 (Count One);
possession of and brandishing a firearm in furtherance of a
crime of violence, namely the bank robbery charged in Count
One, in violation of 18 U.S.C. § 924(c)(1)(C)(ii) (Count
Two); and bank robbery, in violation of 18 U.S.C. §
2113(a) (Count Three). (Id., Doc. No. 1:
Indictment). Petitioner agreed to plead guilty to all three
charges. (Id., Doc. No. 23: Plea Agrmt.). As part of
Petitioner's plea agreement, the Government agreed that
his plea was timely for purposes of acceptance of
responsibility and both parties agreed that either side could
seek a departure or variance at sentencing. (Id. at
¶ 6). Petitioner also agreed to waive the right to
challenge his conviction or sentence on appeal or in any
post-conviction proceeding, except as to claims of
ineffective assistance of counsel or prosecutorial
misconduct. (Id. at ¶¶ 17-18).
plea hearing, Petitioner agreed that he understood the terms
of the plea agreement, that he understood and agreed to the
waiver of his right to challenge his conviction and sentence
on appeal or in any post-conviction proceeding, that other
than the plea agreement there were no agreements between the
parties, and that no promises of leniency or a light sentence
had been made to induce him to plead guilty. (Id.,
Doc. No. 56 at 12-15: Plea Tr.). When the magistrate judge
asked Petitioner whether he was satisfied with his attorney,
he stated, “Great guy. Great services.”
(Id. at 15). The magistrate judge found that
Petitioner's guilty plea was knowingly and voluntarily
made and accepted it. (Id. at 16-17).
probation officer prepared a presentence report, recommending
that Petitioner be sentenced at offense level 22.
(Id., Doc. No. 34 at ¶¶ 22-44). The
probation officer also found that Petitioner had 15 criminal
history points, based on his prior New York state convictions
from 2004 through 2012, and a criminal history category of
VI. (Id. at ¶¶ 50-59). The advisory
guidelines range for Counts One and Three was 84-105 months
of imprisonment, with a mandatory-minimum consecutive
sentence of seven years as to Count Two. (Id. at
sentencing, Petitioner stated that he remembered the plea
hearing and would give the same answers if the Court were to
ask him those questions again. (Id., Doc. No. 57 at
2-3: Sent. Tr.). This Court accepted his plea. (Id.
at 3-4). Although the Government argued for a sentence in the
middle of the guidelines range, this Court sentenced
Petitioner at the bottom of the guidelines range to 84 months
of imprisonment for Counts One and Three, to be served
concurrently, and 84 months of imprisonment as to Count Two,
to be served consecutively, for a total sentence of 168
months of imprisonment. (Id. at 14, 17-18).
appealed. His attorney filed an Anders brief, but
questioned whether the Government had breached the plea
agreement by not moving for a downward departure and whether
this Court had erred by accepting a guilty plea to the
firearm charge given Petitioner's new representation that
the firearm was fake. United States v. Hinson, 621
F. App'x 201 (4th Cir. 2015). Petitioner filed a pro se
supplemental brief, asserting that his attorney had promised
him that he would receive a downward departure, that the
firearm used during the offense was only a BB-gun and was
only brandished by his accomplice, and that Petitioner was
not seen by a doctor for his mental health issues before
sentencing. (Appellate Doc. No. 31).
October 2015, the Fourth Circuit affirmed Petitioner's
conviction and sentence, holding that Petitioner had not
shown that the Government breached the plea agreement, that
this Court had not erred in accepting his guilty plea, and
that the issues raised in Petitioner's pro se
supplemental brief lacked merit. Hinson, 621 F.
App'x at 202. Petitioner timely filed the present motion
to vacate in June 2016. (Civ. Doc. No. 1). In his motion,
Petitioner argues that this Court breached an agreement to
sentence him at the low end of the Sentencing Guidelines and
his attorney provided ineffective assistance by failing to
object to the Government's alleged breach; his conviction
under 18 U.S.C. § 924(c) is invalid under Johnson v.
United States, 135 S.Ct. 2551 (2015); his § 924(c)
conviction violates double jeopardy; and his criminal history
category was incorrectly calculated. (Doc. No. 1 at 5-9). The
Government filed its response and motion to dismiss on
December 30, 2016. (Doc. No. 3). On January 3, 2017, this
Court issued an order giving Petitioner until January 20,
2017, to respond to the Government's motion to dismiss.
(Doc. No. 4). Petitioner has not responded and the time to do
so has passed. Therefore, this matter is ripe for
STANDARD OF REVIEW
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 arguments 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).
Petitioner's Claims other than His Claim of ...