United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN United States District Judge.
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, made pursuant to 28
U.S.C. § 2255 (DE 49, 53), which challenges
petitioner's career offender sentencing enhancement in
light of the Supreme Court's ruling in Johnson v.
United States, 135 S.Ct. 2551 (2015). The issues raised
are ripe for ruling. For the reasons that follow, the court
denies petitioner's motion to vacate.
March 10, 2015, petitioner pleaded guilty, pursuant to a
written plea agreement, to conspiracy to distribute and
possess with the intent to distribute quantities of heroin,
cocaine, and cocaine base (crack), in violation of 21 U.S.C.
§§ 841(b)(1)(C) and 846. On July 8, 2015, the court
sentenced petitioner to 141 months' imprisonment.
Petitioner did not appeal his judgment.
1, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, arguing that in light of
Johnson, his North Carolina conviction for
conspiracy to commit robbery with a dangerous weapon no
longer qualifies as a “crime of violence” for
purposes of his career offender status. On March 14, 2017,
the court ordered petitioner to show cause, within 30 days,
why his motion to vacate should not be dismissed in light of
the Supreme Court's decision in Beckles v. United
States, 137 S.Ct. 886 (2017). Petitioner failed to respond
to the court's show cause order.
Standard of Review
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that “the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” Id. § 2255(b).
to Johnson, an offense was deemed a “violent
felony” under the Armed Career Criminal Act's
(“ACCA”) so-called “residual clause”
if it was punishable by greater than one year's
imprisonment and “involve[d] conduct that present[ed] a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B). In Johnson, the
Supreme Court struck down the residual clause of the ACCA as
unconstitutionally vague. 135 S.Ct. at 2563. In this case,
petitioner relies on Johnson's reasoning to
challenge application of a similar clause found in U.S.S.G.
§ 4B1.2(a) at the time of his sentencing. The Supreme
Court recently held, however, that the Guidelines are not
“amenable to a vagueness challenge.”
Beckles, 137 S.Ct. at 894. Thus, petitioner may not
rely on Johnson's reasoning to attack his career
offender designation. Consequently, petitioner's motion
must be denied.
Certificate of Appealability
certificate of appealability may issue only upon a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The petitioner
must demonstrate that reasonable jurists could debate whether
the issues presented should have been decided differently or
that they are adequate to deserve encouragement to proceed
further. Miller-El v. Cockrell 537 U.S. 322, 336-38
(2003); Slack v. McDaniel 529 U.S. 473, 483-84
(2000). After reviewing the claim presented on collateral
review in light of the applicable standard, the court finds
that a certificate of appealability is not warranted.
on the foregoing, the court DENIES petitioner's motion to
vacate (DE 49, 53). The court also DENIES a certificate of