United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
17, 2016, Iran Devon Cook ("Cook") moved pursuant
to 28 U.S.C. § 2255 to vacate, set aside, or correct his
262-month sentence [D.E. 158]. On October 24, 2016, the
government moved to dismiss Cook's motion and filed a
supporting memorandum [D.E. 167, 168]. On December 6, 2016,
Cook responded in opposition [D.E. 172]. As explained below,
the court grants the government's motion to dismiss.
August 28, 2007, Cook pleaded guilty, pursuant to a plea
agreement [D.E. 66], to (1) possessing with intent
to distribute a quantity of cocaine base (crack) and aiding
and abetting in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2; and (2) using, carrying, or possessing a
firearm during and in relation to a drug trafficking crime
and aiding and abetting in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2. See [D.E. 1, 50];
Presentence Investigation Report ("PSR")
¶¶ 1-2, 6. Before sentencing, the United States
Probation Office ("probation") prepared a
Presentence Investigation Report ("PSR"). In the
PSR, probation found that Cook had two prior felony
convictions involving either a crime of violence or a
controlled-substance offense. See PSR ¶¶ 14, 16.
Thus, probation determined that, pursuant to U.S. S.G.
§4B 1.1, Cook was a career offender. See Id.
¶ 39. Cook's designation as a career offender meant
that, pursuant to U.S.S.G. § 4B1.1 (c)(3), his advisory
guideline range was 262 to 327 months, regardless of the drug
weight attributed to him. See id. ¶ 45. Cook
did not object to the PSR or to the advisory guideline range.
See PSR, Addendum; Transcript of Sentencing Proceedings
("Sentencing Tr.") [D.E. 65] 5. On December 4,
2007, at Cook's sentencing hearing, the court adopted the
facts set forth in the PSR. See Sentencing Tr. 5; Fed. R.
Crim. P. 32(i)(3)(A). After considering the entire record,
arguments of counsel, and the section 3553(a) factors, this
court sentenced Cook to 262 months' imprisonment. [D.E.
59]; see Sentencing Tr. 10.
appealed. On December 1, 2010, the United States Court of
Appeals for the Fourth Circuit affirmed. See United
States v. Cook. 401 F.App'x 857, 858-59 (4th Cir.
2010) (per curiam) (unpublished). In dismissing part of
Cook's appeal, the Fourth Circuit enforced the appellate
waiver in Cook's plea agreement. See id.
Cook's section 2255 motion, Cook alleges that he is no
longer a career offender under Johnson v. United
States. 135 S.Ct. 2551 (2015). See [D.E. 158] 4-12. The
government disagrees and has moved to dismiss Cook's
motion for failure to state a claim upon which relief can be
granted. See [D.E. 167, 168].
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests the legal and factual
sufficiency of a complaint. See Ashcroft v. Iqbal.
556 U.S. 662, 677-78 (2009); Bell Ail. Corp. v.
Twombly. 550 U.S. 544, 562-63, 570 (2007); Coleman
v. Md. Court of Appeals. 626F.3d 187, 190 (4th Cir.
2010), affd. 132 S.Ct. 1327 (2012); Giarratano
v. Johnson. 521 F.3d 298, 302 (4th Cir. 2008);
accord Erickson v. Pardus. 551 U.S. 89,
93-94 (2007) (per curiam). In considering a motion to
dismiss, a court need not accept a complaint's legal
conclusions. See, e.g.. Iqbal. 556
U.S. at 678. Similarly, a court "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3d at 302
(quotation omitted); see Iqbal. 556 U.S. at 677-79.
Moreover, a court may take judicial notice of public records
without converting a motion to dismiss into a motion for
summary judgment. See, e.g.. Fed.R.Evid. 201;
Tellabs. Inc. v. Makor Issues & Rights. Ltd..
551 U.S. 308, 322 (2007); Philips v. Pitt Ctv. Mem'l
Hosp.. 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a
section 2255 motion, the court is not limited to the motion
itself. The court may consider "the files and records of
the case." 28 U.S.C. § 2255(b); see United
States v. McGill. 11 F.3d 223, 225 (1st Cir. 1993).
Likewise, a court may rely on its own familiarity with the
case. See. e.g.. Blackledge v. Allison. 431 U.S. 63,
74 n.4 (1977); United States v. Dvess. 730 F.3d 354,
359-60 (4th Cir. 2013).
plea agreement contains an appellate waiver. See Plea Ag.
[D.E. 66] ¶ 2(c). In the waiver, Cook agreed
[t]o waive knowingly and expressly all rights, conferred by
18 U.S.C. § 3742, to appeal whatever sentence is
imposed, including any issues that relate to the
establishment of the advisory Guideline range, reserving only
the right to appeal from a sentence in excess of the
applicable advisory Guideline range that is established at
sentencing, and further to waive all rights to contest the
conviction or sentence in any post-conviction proceeding,
including one pursuant to 28 U.S.C. § 2255, excepting an
appeal or motion based upon grounds of ineffective assistance
of counsel or prosecutorial misconduct not known to the
Defendant at the time of the Defendant's guilty plea. The
foregoing appeal waiver does not constitute or trigger a
waiver by the United States of any of its rights to appeal
provided by law.
Id. The appellate waiver is enforceable. See
Cook. 401 F.App'x at 858-59. Cook's
Johnson claim falls within the appellate waiver and
bars the claim. See United States v. Davis. 689 F.3d
349, 354-55 (4th Cir. 2012) (per curiam); United States
v. Copeland. 707 F.3d 522, 528-30 (4th Cir. 2013);
United States v. Thornsbury, 670 F.3d 532, 537 (4th
Cir. 2012); United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005).
assuming without deciding that Johnson applies
retroactively to Cook, Johnson does not help Cook. Cook's
2000 conviction for robbery with a dangerous weapon, see PSR
¶ 16, continues to qualify as a crime of violence under
the guidelines even after Johnson. See, e.g.,
United States v. Smith. 638 F.App'x 216, 219 (4th
Cir. 2016) (per curiam) (unpublished); United States v.
Span. 789 F.3d 320, 324 (4th Cir. 2015). When Cook's
robbery with a dangerous weapon conviction is coupled with
Cook's conviction and ten-year sentence in 1995 for sell
or delivery of cocaine (PSR ¶ 14), Cook remains a career
offender under the guidelines. Thus, Johnson does not help
Cook, and his claim fails.
reviewing the claim presented in Cook's motion, the court
finds that reasonable jurists would not find the court's
treatment of Cook's claim debatable or wrong, and that
the claim does not deserve encouragement to proceed any
further. Accordingly, the court denies a certificate of
appealability. See 28 U.S.C. § 2253(c); Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel. 529 U.S. 473, 484 (2000).
the court GRANTS the government's motion to dismiss [D.E.
167], DISMISSES Cook's section 2255 motion [D.E. 158],