United States District Court, E.D. North Carolina, Southern 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 26, 30]. The government has moved to dismiss
the petition, [DE 33], petitioner responded, [DE 36], 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.
August 11, 2014, petitioner pleaded guilty, without a plea
agreement, to illegal reentry by a deported alien, in
violation of 8 U.S.C. §§ 1326(a) and (b). [DE 18].
On November 19, 2014, the Court sentenced petitioner to 44
months' imprisonment and 3 years' supervised release.
[DE 22, 23]. Petitioner did not appeal his judgment.
20, 2016, petitioner filed the instant motion under 28 U.S.C.
§ 2255. [DE 26, 30]. Petitioner alleges that, in light
of Johnson v. United States, 135 S.Ct. 2551 (2015)
and Welch v. United States, 136 S.Ct. 1257 (2016),
he received an improper 16-level enhancement to his total
offense level. [DE 30 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. [DE 33].
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 Ail. 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).
calculating petitioner's advisory guideline range, his
base offense level was determined to be 8 based on the nature
of petitioner's instant offense. [DE 20 at 12, ¶
44]. A four-level enhancement was applied because petitioner
was previously deported after a felony conviction for any
other felony. [DE 20 at 12, ¶ 45]. Petitioner's base
offense level was also reduced by two levels for acceptance
of responsibility. [DE 20 at 12, ¶ 51]. Contrary to what
petitioner argues in his motion, he did not receive a
16-level enhancement to his offense level, and nor did he
receive an enhancement under the ACCA or under the sentencing
guidelines as a career offender. Neither petitioner's
base offense level nor his four-level adjustment was affected
by language, similar to the residual clause in §
924(e)(2)(B)(ii). As a result, the Supreme Court's
holding in Johnson has no bearing on his sentence.
these reasons, petitioner cannot state a claim upon which
relief may be granted and his § 2255 petition is