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Jackson v. United States

United States District Court, E.D. North Carolina, Western Division

February 2, 2017

LEWIS CARNELL JACKSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 161), which challenges petitioner's Armed Career Criminal Act (ACCA) sentencing enhancement in light of Johnson v. United States, 135 S.Ct. 2551 (2015). The government responded, and the parties filed supplemental briefs upon the court's order to show cause why petitioner's motion should not be dismissed. In this posture, the issues raised are ripe for ruling. For the following reasons, petitioner's motion is denied.

         BACKGROUND

         On April 3, 2008, petitioner was convicted following a jury trial of four counts: (1) conspiracy to distribute and possess with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 846 (“count one”); (2) possession with the intent to distribute a quantity of marijuana and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (“count two”); (3) use, carry, and possess a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (“count three”); (4) possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (“count four”).

         Prior to sentencing, the United States Probation Office prepared and published a Presentence Investigation Report (“PSR”), which describes in detail petitioner's background, including his criminal history. Based on petitioner's criminal history, the PSR determined that petitioner was an “armed career criminal” and that his statutory minimum sentence on count four was 15 years, under 18 U.S.C. § 924(e)(1). (DE 71, ¶¶ 48, 54). In support of its designation of petitioner as an “armed career criminal” the PSR identified two North Carolina felony convictions for “Sale and Delivery of Cocaine, ” one North Carolina felony conviction for “Discharge a Weapon into Occupied Property, ” one North Carolina felony conviction for “Assault with a Deadly Weapon With Intent to Kill” (hereinafter “AWDWIK”), one North Carolina felony conviction for “Assault with a Deadly Weapon Inflicting Serious Injury, ” and one North Carolina felony conviction for “Breaking and Entering.” (Id. ¶¶ 11, 17, 19). In addition, in addressing an objection to the “armed career criminal” designation, the PSR identified an additional conviction for “Sale and Delivery of Cocaine.” (See id. ¶10 & p. 16).

         The court sentenced petitioner to a total term of 360 months imprisonment, adopting the PSR without change. (See DE 65). Petitioner appealed, and the Fourth Circuit affirmed.

         Petitioner filed a first § 2255 motion on May 16, 2012, as supplemented, including claims for ineffective assistance of counsel, which the court denied on December 15, 2014. On June 7, 2016, the Fourth Circuit entered an order authorizing petitioner to file a second or successive § 2255 motion on the basis of Johnson.

         Petitioner filed the instant motion to vacate on June 27, 2016, arguing that he can no longer be classified as an Armed Career Criminal because he does not have qualifying predicate convictions following Johnson. The government responded, suggesting that petitioner does not have three qualifying predicate convictions under the ACCA, but urging the court to reimpose the same sentence on the basis of a career offender enhancement. On December 8, 2016, this court entered an order directing the parties to show cause why petitioner's § 2255 motion should not be dismissed, where the PSR in this case identified three serious drug offenses, amongst other prior convictions, as predicates for petitioner's enhanced penalty under the ACCA. (See PSR ¶¶ 10, 11, 48, and p. 16).

         In response to the show cause order, petitioner argues that one of the three identified drug offenses (PSR ¶10) does not now qualify as an ACCA predicate because it does not have a maximum sentence of ten years, and that the other two identified drug offenses (PSR ¶11) must be counted together because there is no evidence they occurred on different occasions. In addition, petitioner reiterates his position that the assault convictions and discharge of firearm conviction (PSR ¶17) are not valid predicate convictions. In its response, the government now takes the position that petitioner remains an armed career criminal, because the two drug offenses in PSR ¶10 qualify separately as valid predicates, coupled with the AWDWIK conviction and breaking and entering conviction.

         COURT'S DISCUSSION

         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” § 2255(b).

         B. Analysis

         1. ...


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