United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 118]. The government has moved to dismiss
the petition, [DE 135], and the matter is ripe for
disposition. For the reasons discussed below, the
government's motion to dismiss is granted and
petitioner's motion is dismissed.
November 12, 2008, petitioner pleaded guilty, pursuant to a
written plea agreement, to conspiracy to commit armed bank
robbery, in violation of 18 U.S.C. § 371 (Count One);
armed bank robbery and aiding and abetting, in violation of
18 U.S.C. §§ 2113(a), (d) and 2 (Count Two);
carrying a firearm during a crime of violence and aiding and
abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A)
and 2 (Count Three); escape or attempt to escape from
custody, in violation of 18 U.S.C. §§751 and 2
(Count Five); and felon in possession of ammunition, in
violation of 18 U.S.C. §§ 922(g), 924(e)(1) and 2
(Count Six). [DE 63, 64]. On February 9, 2009, the Court
sentenced petitioner to 300 months' imprisonment on all
counts, with the terms to run concurrently with each other.
18, 2016, petitioner filed the instant motion under 18 U.S.C.
§ 2255. [DE 118]. Petitioner argues that, in light of
Johnson v. United States, 125 S.Ct. 2551 (2015), his
prior convictions for unarmed bank robbery and assault with a
firearm on a law enforcement officer are not crimes of
violence. As a result, petitioner argues that he no longer
qualifies for sentencing enhancement as an armed career
criminal or career offender. [DE 118 at 4]. The government
responded, arguing that the motion should be dismissed for
failure to state a claim upon which relief can be granted
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible.'" Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "Under § 2255(b), [u]nless the motion and
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court must grant a
prompt hearing to determine the issues and make findings of
fact and conclusions of law with respect thereto."
United States v. Thomas, 627 F.3d 534, 539 (4th Cir.
2010) (internal quotation omitted). However, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
provides for enhanced punishments for those offenders who
have three prior convictions for violent felonies or serious
drug offenses. 18 U.S.C. § 924(e)(1). A violent felony
is defined by the statute as any crime punishable by more
than one year imprisonment that
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another;
18 U.S.C. § 924(e)(2)(B). In Johnson, the
Supreme Court addressed the constitutionality of the residual
clause of ACCA's violent felony definition, which defines
a violent felony to include one which "otherwise
involves that presents a serious potential risk of physical
injury to another." 135 S.Ct. 2557. The Court held that
the residual clause is unconstitutionally vague and that to
increase a defendant's sentence under that clause denies
the defendant due process of law. Id. at 2557. In
Welch v. United States, the Supreme Court held that
Johnson announced a substantive rule that applies
retroactively on collateral review. 136 S.Ct. 1257 (2016).
residual clause has been held to be unconstitutional, only
those convictions which satisfy one of the two remaining
provisions of the definition of violent felony-the force
clause ("has as an element the use, attempted use, or
threatened use of physical force against the person of
another") or the enumerated clause ("is burglary,
arson, or extortion, involves use of explosives")-remain
proper ACCA predicates. "[I]n the context of a statutory
definition of 'violent felony, ' the phrase
'physical force' means violent force-that
is, force capable of causing physical pain or injury to
another person." Johnson v. United States, 559
U.S. 133, 140 (2010) (emphasis in original). This definition
requires "a higher degree of intent than negligent or
merely accidental conduct." Leocal v. Ashcroft,
543 U.S. 1, 2 (2004).
continues to qualify for enhancement under the ACCA. Even
after Johnson, petitioner has three qualifying
predicates which have been held to be violent felonies under
the force clause: a 1987 conviction for North Carolina
breaking and entering, United States v. Mungro, 754
F.3d 267, 272 (4th Cir. 2014) [PSR at 8, ¶ 24]; and two
1991 convictions for federal bank robbery, see United
States v. McNeal, 818 F.3d 141, 157 (4th Cir. 2016) [PSR
at 11, ¶¶ 31-32].
regardless of whether petitioner is a career offender, his
base offense level would remain 34. Under USSG § 4B
1.4(b)(3)(A), a defendant subject to enhancement as an armed
career criminal will have a base offense level of 34 if the
defendant used or possessed a firearm in connection with a
crime of violence. As stated above, petitioner qualifies for
ACCA enhancement because he has three qualifying predicate
offenses. In the instant offense, petitioner used a firearm
in connection with armed bank robbery, which qualifies as a
crime of violence. See McNeal, 818 F.3d at 157;
[see PSR at 5, ...