United States District Court, E.D. North Carolina, Western 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, 52), which challenges
petitioner's sentence 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, this court denies petitioner's
motion to vacate.
January 13, 2015, petitioner pleaded guilty to being a felon
in possession of a firearm and ammunition, in violation of 18
U.S.C. §§ 922(g)(1) and 924. On May 19, 2015, this
court sentenced petitioner to 72 months' imprisonment.
Petitioner appealed, and the Fourth Circuit Court of Appeals
affirmed this court's judgment.
23, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, arguing that in light of
Johnson: 1) neither his North Carolina conviction
for attempted robbery with a dangerous weapon nor his
conviction for conspiracy to commit robbery qualify as a
“crime of violence” for purposes of U.S.S.G.
§ 2K2.1; and 2) this court erred in imposing the
“4 level variance enhancement.” On March 14,
2017, this 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.
first claim, 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.
See U.S.S.G. § 2K2.1, cmt. n.1 (stating §
4B1.2(a) provides the definition for “crime of
violence” in § 2K2.1). 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 challenge the calculation of his Guidelines
second claim, which he raises pro se, relies on
Johnson to challenge the court's decision to
impose the “ 4 level variance enhancement.” A
review of the record reveals that no four-level sentencing
enhancement was included in petitioner's Guidelines
calculation. Moreover, to the extent that petitioner is
challenging this court's upward variance,
Johnson is irrelevant. Finally, this court can
discern no basis on which petitioner's second claim could
be cognizable on collateral review. See 28 U.S.C.
§ 2255(a) (providing that a motion to vacate may be
based on the following grounds: the sentence was imposed in
violation of the Constitution or laws of the United States,
the court was without jurisdiction to impose such sentence,
the sentence was in excess of the maximum authorized by law,
or the sentence is otherwise subject to collateral attack).
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, 484 (2000).
After reviewing the claims ...