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Goins v. United States

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

February 2, 2017

CHRISTOPHER HAROLD GOINS, JR., 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 52), which challenges petitioner's Armed Career Criminal Act (ACCA) sentencing enhancement in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 58). The issues raised are ripe for ruling. For the reasons that follow, the court denies petitioner's motion and grants the government's motion.

         BACKGROUND

         The government filed an indictment in this case on September 15, 2010, charging petitioner with one count of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and one count of possession of a stolen firearm, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). The indictment charged that petitioner had at least three previous convictions for violent felonies, as defined in 18 U.S.C. § 924(e)(2)(B). On January 12, 2011, defendant pleaded guilty without a plea agreement to both counts.

         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 was 15 years, under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). (DE 27, ¶¶ 44, 48-49). In petitioner's criminal history, the PSR identified one North Carolina felony conviction for “breaking and entering, ” one North Carolina felony conviction for “Assault With a Deadly Weapon Inflicting Serious Injury, ” one North Carolina felony conviction for “Assault With a Deadly Weapon With Intent to Kill or Inflict Serious Injury, ” and one North Carolina felony conviction for “Assault With a Deadly Weapon With Intent to Kill Inflicting Serious Injury.” (Id. ¶¶ 10, 15, 17, 18).[1]

         The court sentenced petitioner on April 1, 2011, to a term of imprisonment of 240 months, adopting the PSR without change, and upwardly departing on the basis of criminal history inadequacy, pursuant to U.S.S.G. § 4A1.3. (See DE 33, 34). Petitioner appealed, and the Fourth Circuit affirmed and remanded for correction of the written judgment to specify that petitioner's federal sentence shall be served concurrently with any not-yet-imposed state sentence involving the same firearm. The court amended its judgment accordingly on June 8, 2012.

         Petitioner filed the instant motion to vacate on May 6, 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 moves to dismiss on the basis that petitioner qualifies as an Armed Career Criminal on the basis of petitioner's convictions for breaking and entering, assault with a deadly weapon with intent to kill or inflict serious injury, and assault with a deadly weapon with intent to kill inflicting serious injury. In response, petitioner contends that the assault convictions do not constitute predicate convictions for purposes of the ACCA.

         On December 8, 2016, the court held in abeyance ruling on the instant motions and directed the government to file further documentation regarding the nature of petitioner's prior conviction denominated in the PSR as “assault with a deadly weapon with intent to kill or inflict serious injury.” (PSR ¶ 17). The United States Probation Office provided said documentation to the court on December 15, 2016, and the government filed the same on February 1, 2017. (See DE 65). Defendant filed a response reiterating his position that none of the assault convictions constitute predicate convictions for purposes of the ACCA.

         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. Breaking and Entering

         Johnson invalidated the “residual clause” contained in the definition of “violent felony” in the ACCA. 135 S.Ct. at 2555-56, 2563 (quoting 18 U.S.C. § 924(e)(2)(B)). Johnson, however, “does not call into question application of the [ACCA] to the four enumerated offenses or the remainder of the [ACCA's] definition of a violent felony.” Id. at 2563. One of those enumerated offenses that constitutes a “violent felony” under the ACCA is “burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). It is well-established in this circuit that the North Carolina offense of breaking and entering qualifies as burglary. See United States ...


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