United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.
20, 2016, Patrick Armwood ("Armwood") moved under
28 U.S.C. § 2255 to vacate, set aside, or correct his
120-month sentence [D.E. 38]. On November 18, 2016, the
government moved to dismiss Armwood's motion [d.E. 42]
and filed a supporting memorandum [D.E. 43]. On December 22,
2016, Armwood responded in opposition [D.E. 47]. As explained
below, the court grants the government's motion to
9, 2013, pursuant to a plea agreement, Armwood pleaded guilty
to possession of ammunition by a felon in violation of 18
U.S.C. § 922(g)(1) and 924. See [D.E. 1, 27];
Presentence Investigation Report ("PSR") [D.E. 32]
¶¶ 1-2. Before sentencing, the United States
Probation Office ("Probation") prepared a PSR. In
the PSR, Probation found that Armwood had been convicted of
two crimes of violence before committing the instant offense;
therefore, his base offense level would be 24 under U.S.S.G.
§ 2K2.1(a)(2). See PSR ¶ 42. Probation also found,
however, that U.S.S.G. § 2K2.1(c)(1)(A) and §
2X1.1(a) required abase offense level of 27 because the
offense conduct involved attempted second degree murder. See
Id. Armwood did not object to the PSR or to his
advisory guideline range of 110 to 120 months'
imprisonment. See PSR Addendum. On August 28, 2013, at
Armwood's sentencing hearing, the court adopted the facts
set forth in the PSR. See 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 Armwood to 120
months' imprisonment. [D.E. 35]. Armwood did not appeal
his conviction or sentence.
Armwood's section 2255 motion, he alleges that under
Johnson v. United States. 135 S.Ct. 2551 (2015), he
no longer has any convictions for a crime of violence under
U.S.S.G. §§ 2K2.1 and4B1.2. See [D.E. 38] 4. The
government responds that the appellate waiver in
Armwood's plea agreement bars his claim and
Johnson has nothing to do with Armwood's
sentence. Thus, the government moves to dismiss Armwood's
motion for failure to state a claim upon which relief can be
granted. See [D.E. 43] 4-5.
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 a complaint's legal and
factual sufficiency. See Ashcroft v. Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twomblv. 550
U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of
Appeals. 626 F.3d 187, 190 (4th Cir. 2010),
affd. 566 U.S. 30 (2012); CHan-ataim v Jnhnsnn. 521
F.3d 298, 302 (4th Cir. 2008); accord Ericksonv.
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.. Blackledee 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 [D.E. 27]
¶ 2(c). In the waiver, Armwood 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. In light of Armwood's Rule 11 proceeding,
the appellate waiver is enforceable. See United
States v. Copeland. 707 F.3d 522, 528-30 (4th Cir.
2013); United States v. Davis. 689 F.3d 349, 354-55
(4th Cir. 2012) (per curiam); United States v.
Thornsburv. 670 F.3d 532, 537 (4th Cir. 2012);
United States v. Blick. 408 F.3d 162, 168 (4th Cir.
2005). Armwood's Johnson claim falls within the
appellate waiver. Accordingly the waiver bars the claim.
Johnson does not help Armwood. Armwood's base
offense level had nothing to do with whether he had any
convictions for a crime of violence under U.S.S.G.
§§ 2K2.1 and 4B1.2. SeePSR¶42. Thus, me
Johnson claim fails.
reviewing the claim presented in Armwood's motion, the
court finds that reasonable jurists would not find the
court's treatment of Armwood'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.
42], DISMISSES Armwood's section 2255 motion [D.E. 38],