United States District Court, E.D. North Carolina, Eastern Division
C. DEVER, III Chief United States District Judge
24, 2016, Joel Devon Williams ("Williams") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his 54-month sentence [D.E. 69]. On November 14,
2016, the government moved to dismiss Williams's motion
[D.E. 74] and filed a supporting memorandum [D.E. 75]. On
November 30, 2016, Williams responded in opposition [D.E.
77]. As explained below, the court grants the
government's motion to dismiss and dismisses
Williams's section 2255 motion.
October 28, 2013, pursuant to a plea agreement, Williams
pleaded guilty to (1) possession of a firearm by a felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924 (count
three); and (2) distribution of a quantity of cocaine base
(crack) in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) (count seven). See [D.E. 1, 43]; Presentence
Investigation Report ("PSR") [D.E. 53] ¶¶
1-13. Before sentencing, the United States Probation Office
("Probation") prepared a PSR. In the PSR, Probation
concluded that Williams's base offense level was 22 under
U.S.S.G. § 2K2.1 (a)(3) because Williams had one felony
conviction for a crime of violence. See PSR ¶ 52. The
PSR stated that Williams had a total offense level of 25, a
criminal history category VI, and an advisory guideline range
on count seven of 110 to 137 months' imprisonment. See
Id. ¶ 64. Williams's advisory guideline
range on count three was capped at 120 months'
imprisonment. Williams did not object to the PSR or to the
advisory guideline range. See PSR Addendum; Sentencing Tr.
[D.E. 62] 5.
December 4, 2007, at Williams's sentencing hearing, the
court adopted the facts set forth in the PSR. See Sentencing
Tr. at 5; Fed. R. Crim. P. 32(i)(3)(A). After granting the
government's motion under U.S.S.G. § 5K1.1 and
considering the entire record, arguments of counsel, and the
section 3553(a) factors, this court sentenced Williams to 72
months' imprisonment per count to run concurrently. See
Sentencing Tr. at 13-20. Williams did not appeal. On January
16, 2015, this court reduced Williams's sentence to 54
months' imprisonment. See [D.E. 67].
Williams's section 225 5 motion, Williams alleges that
under Johnson v. United States, 135 S.Ct. 2551
(2015), the court miscalculated his base offense level under
U.S.S.G. § 2K2.1(a)(3) because he now lacks a felony
conviction for a crime of violence under the Guidelines. See
[D.E. 69] 4-9. The government disagrees and has moved to
dismiss Williams's motion for failure to state a claim
upon which relief can be granted. See [D.E. 74, 75].
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. Twombly, 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); Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. 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 (1 st Cir. 1993). Likewise, a court may rely
on its own familiarity with the case. See. e.g.,
Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977);
United States v. Dyess, 730 F.3d 354, 359-60 (4th
plea agreement contains an appellate waiver. See
Plea Ag. [D.E. 43] ¶ 2(c). In the waiver, Williams
[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 the 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.
Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012);
United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005). Williams's Johnson claim falls
within the appellate waiver, which bars the claim.
Johnson does not help Williams. First,
Johnson does not apply retroactively to permit
collateral claims challenging sentences under the
then-existing residual clause in U.S.S.G. § 4B1.2(a)(2).
See Beckles v. United States, 137 S.Ct. 886, 891-92
(2017); United States v. Mack, No. 15-4684, 2017 WL
1544953, at * 3 (4th Cir. May 1, 2017); United States v.
Lee, No. 15-6099, 2017 WL 1476145 at *2 (4th Cir. Apr.
25, 2017). Second, and in any event, Williams's
conviction for conspiracy to commit robbery with a dangerous
weapon remains a crime of violence under the Guidelines even
after Johnson. See United States v. Riley,
No. 15-4317, 2017 WL 1854301, at *2-3 (4th Cir. May 9, 2017);
Mack. 2017 WL 1544953, at * 3; Paris v. United
States, 191 F.Supp.3d 559, 561 (E.D. Va. 2016). Thus,
Johnson does not help Williams, and his claim fails.
reviewing the claim presented in Williams's motion, the
court finds that reasonable jurists would not find the
court's treatment of Williams'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.
74], DISMISSES Williams's section 2255 motion [D.E. 69],