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Flores-Lopes v. United States

United States District Court, E.D. North Carolina, Western Division

May 1, 2017

ROBERTO CARLOS FLORES-LOPES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [DE 41, 44]. The government has moved to dismiss the petition, [DE 50], 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.

         BACKGROUND

         On May 2, 2014, petitioner pleaded guilty, pursuant to a written plea agreement, to conspiracy to distribute and possession with intent to distribute a quantity of cocaine exceeding 500 grams, in violation of 21 U.S.C. § 846 (Count One); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three). [DE 23]. On August 5, 2014, petitioner was sentenced to 60 months' imprisonment, consecutive on both counts, for a total of 120 months' imprisonment. [DE 31].

         On September 28, 2015, petitioner filed a motion to reduce his sentence. [DE 37]. The motion was denied. [DE 40]. On July 29, 2016, petitioner filed a motion to vacate under 28 U.S.C. § 2255 based upon the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015). [DE 44]. 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].

         DISCUSSION

         "To 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 BellAtl. 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)).

         The 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).

         Petitioner fails to raise a cognizable claim under Johnson because the residual clause does not affect any aspect of his sentence. Petitioner was neither sentenced as an armed career criminal nor as a career offender. Petitioner did not receive any guidelines enhancements based upon a crime of violence. Further, petitioner's 924(c) conviction is based upon drug trafficking. Therefore, the residual clause does not affect his sentence and his claim should be dismissed.

         For these reasons, petitioner cannot state a claim upon which relief may be granted and his § 2255 petition is properly dismissed.

         Certificate ...


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