United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief 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. 2). Petitioner is represented
by Ann L. Hester of the Federal Defenders of Western North
Brian Jerome Wise was indicted for conspiracy to possess with
intent to distribute five kilograms or more of cocaine and 50
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (Count One); two counts of
possession with intent to distribute five grams or more of
cocaine base, in violation of 21 U.S.C. § 841 (Counts
Ten and Eleven); and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (Count
Twelve). See (Crim. Case No. 3:04-cr-39-FWD-3, PSR
at ¶ 1). The Government filed a notice of intention to
seek enhanced penalties under 21 U.S.C. § 851, citing
Petitioner's two prior North Carolina drug convictions: a
1996 conviction for possession of cocaine and a 2002
conviction for possession with intent to sell or deliver
cocaine. (Id., Doc. No. 269: 851 Notice).
agreed to plead guilty to Count One in exchange for the
dismissal of the other charges against him. See
(Id., Doc. No. 170 at ¶¶ 1-2: Plea
Agrmt.). As part of Petitioner's plea agreement, he
agreed that he was responsible for at least 500 grams, but
less than 1.5 kilograms of cocaine base. (Id. at
¶ 7(a)). The parties also agreed to limit the
enhancements that would apply to Petitioner's offense
level. (Id. at ¶ 7(b)-(e)). Petitioner waived
the right to contest his conviction or sentence on appeal or
in any post-conviction proceeding, except as to claims of
ineffective assistance of counsel, prosecutorial misconduct,
or the imposition of a sentence inconsistent with the
guidelines stipulations in the plea agreement. (Id.
at ¶ 20). After a plea hearing, the magistrate judge
accepted Petitioner's guilty plea, finding that it was
knowingly and voluntarily made. (Id., Doc. No. 176:
Entry and Acceptance of Guilty Plea).
probation officer prepared a presentence report, recommending
that, based on the amount of drugs involved in the offense,
Petitioner's base offense level was 36 and that he should
receive a three-level reduction for acceptance of
responsibility, resulting in a total offense level of 33.
(Id., PSR at ¶¶ 34-35, 41-42). The
probation officer found that Petitioner had seven criminal
history points-five points based on his prior convictions and
two points for having committed the instant offense while on
probation. (Id. at ¶¶ 55-56). Accordingly,
Petitioner's criminal history category was IV.
(Id. at ¶ 57). The guidelines range of
imprisonment for offense level 33 and criminal history
category IV was 188 to 235 months. (Id. at
¶¶ 87-88). However, because of the mandatory
minimum term of imprisonment in light of Petitioner's two
prior felony drug convictions, the guidelines term of
imprisonment was life. (Id.).
sentencing, this Court granted the Government's motion to
withdraw Petitioner's 1996 drug conviction from the
§ 851 notice. See (Id., Docket entries
dated July 5, 2006). This reduced the mandatory minimum term
of imprisonment, as well as the guidelines range, to 240
months of imprisonment. See (Id.). This
Court sentenced Petitioner to 240 months of imprisonment on
July 5, 2006. (Id., Doc. No. 279: Judgment).
Petitioner did not appeal. This Court subsequently denied
three motions by Petitioner for reduction of sentence under
18 U.S.C. § 3582 based on amendments to the guidelines.
See (Id., Doc. Nos. 358, 398, 444).
filed the pending motion to vacate through counsel on January
17, 2017. (Doc. No. 2). Petitioner argues that the statutory
mandatory minimum sentence of 240 months should not apply
because, in light of United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc), his prior North Carolina
conviction for possession with intent to sell or deliver
cocaine no longer qualifies as a felony drug offense.
(Id.). The Government has now responded and concedes
that Petitioner is entitled to sentencing relief.
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. The Court has
considered the record in this matter and applicable authority
and concludes that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
28 U.S.C. § 2255(f)(1), a § 2255 motion must be
filed within one year of “the date on which the
judgment of conviction becomes final.” 28 U.S.C. §
2255(f)(1). Here, Petitioner did not file the petition within
one year of when his conviction became final. Thus, the
petition is untimely under § 2255(f)(1). The Government
states, however, that it is waiving the statute of
limitations. The Government also states that it does not seek
to enforce the waiver provision in Petitioner's plea
agreement. Thus, the Court may address the merits of
841 of Title 21 provides for enhanced sentences based on any
prior “felony drug offense.” That term is defined
in Section 802(44) as “an offense that is punishable by
imprisonment for more than one year under [any state or
federal law relating to narcotics or marijuana].” In
Simmons, the Fourth Circuit held than an offense
qualifies as a “felony drug offense” for purposes
of Section 841(b)(1) and is punishable by more than one year
in prison only if the defendant could have received a
sentence of more than one year in prison, overturning its
earlier decisions in United States v. Jones, 195
F.3d 205 (4th Cir. 1999), and United States v. Harp,
406 F.3d 242 (4th Cir. 2005), in which the Fourth Circuit
held that an offense is punishable by more than one year in
prison as long as any defendant could receive a term
of imprisonment of more than one year upon conviction for
that offense. Thus, under Simmons, for purposes of a
qualifying predicate conviction under Section 841(b)(1), a
predicate conviction is not “punishable for a term
exceeding one year” unless the defendant could have
received a sentence of more than one year in prison under the
North Carolina Structured Sentencing Act.
the Court enhanced Petitioner's sentence based on his
prior North Carolina conviction for possession with intent to
sell or deliver cocaine, a Class H crime. See N.C.
Gen. Stat. § 90-95 (2000). Petitioner had a prior record
level of II, and he received an 8-10 month suspended sentence
for this offense. (Civ. Doc. No. 2-3). Under the North
Carolina Structured Sentencing Act, N.C. Gen. Stat. §
15A-1340.17(c)-(d) (2000), Petitioner could not have received
a sentence of more than one year in prison for this
conviction. Accordingly, although Jones and
Harp were still good law at the time this Court
sentenced Petitioner, Simmons has made clear that
Petitioner's prior conviction for possession ...