United States District Court, E.D. North Carolina, Western Division
C. DEVER, III Chief United States District Judge
22, 2016, Ronnie Anthony Bowman ("Bowman") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his 216-month sentence [D.E. 65]. On November 7,
2016, the government moved to dismiss Bowman's motion
[D.E. 69] and filed a supporting memorandum [D.E. 70]. As
explained below, the court grants the government's motion
to dismiss and dismisses Bowman's section 2255 motion.
March 27, 2007, pursuant to a plea agreement, Bowman pleaded
guilty to conspiracy to distribute and possess with intent to
distribute more than 5 0 grams of cocaine base (crack), more
than 5 kilograms of cocaine, and a quantity of marijuana in
violation of 21 U.S.C. § 846. See [D.E. 1, 18, 51];
Presentence Investigation Report ("PSR")
¶¶ 1-10. Before sentencing, the United States
Probation Office ("Probation") prepared a
Presentence Investigation Report ("PSR"). In the
PSR, Probation concluded that Bowman was a career offender
under U.S.S.G. § 4B1.1. See Id. ¶ 28.
Probation calculated Bowman's advisory guideline range in
the PSR as life imprisonment based on a total offense level
43 and criminal history category VI. See PSR ¶¶
December 5, 2007, at Bowman's sentencing hearing, the
court adopted the facts set forth in the PSR. See Sentencing
Tr. [D.E. 50] 5-18; 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, the arguments of
counsel, and the section 3553(a) factors, this court
sentenced Bowman to 372 months' imprisonment. [D.E. 36];
see Sentencing Tr. at 21-24, 32-40. On September 17, 2013,
the court reduced Bowman's sentence to 216 months'
imprisonment. See [D.E. 54].
Bowman's section 2255 motion, Bowman alleges that he is
no longer a career offender under Johnson v. United
States, 135 S.Ct. 2551 (2015). See [D.E. 65]
4-9. Specifically, Bowman contends that the residual clause
in the career-offender guidelines is unconstitutionally vague
and asks to be resentenced. See Id. The
government disagrees and has moved to dismiss Bowman's
motion for failure to state a claim upon which relief can be
granted. See [D.E. 69, 70].
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure i 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 (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
plea agreement contains an appellate waiver. See Plea Ag.
[D.E. 18] ¶ 2(c). In the waiver, Bowman 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 the Rule 11 proceeding, Bowman's
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). Bowman's Johnson claim falls
within the appellate waiver, which bars the claim.
Bowman's designation as a career offender did not affect
his advisory guideline range. See PSR ¶¶ 53-63. As
the PSR and sentencing transcript make clear, even without
the career-offender designation Bowman had a criminal history
category of V and a total offense level of 43. See PSR
Addendum at 3, Obj. 6; Sentencing Tr. at 16-18. Thus,
Bowman's advisory guideline range was life imprisonment
regardless of whether Bowman was a career offender.
Bowman cannot use Johnson retroactively to challenge
as vague the then-existing residual clause in U.S.S.G. §
4B1.2(a)(2). See, e.g., Beckles v. United
States, 137 S.Ct. 886.890-92 QO17): United States v.
Mack, No. 15-4684, 2017 WL1544953, at* 2-3 (4th Cir. May
1, 2017); United States v. Lee, No. 15-6099, 2017 WL
1476145, at *2 (4th Cir. Apr. 25, 2017). Thus, Bowman remains
a career offender, and his Johnson claim fails.
reviewing the claim presented in Bowman's motion, the
court finds that reasonable jurists would not find the
court's treatment of Bowman'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);