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Gill v. United States

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

May 15, 2017

TONY ANTHONY GILL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This 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 113, 118), 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). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 122). The issues raised are ripe for ruling. For the reasons that follow, the court denies petitioner's motion to vacate and grants the government's motion to dismiss.

         BACKGROUND

         On November 4, 2009, petitioner pleaded guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base (crack), in violation of 21 U.S.C. § 846. On August 13, 2010, this court sentenced petitioner to 240 months' imprisonment. Petitioner did not appeal his judgment.

         Petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255 on July 25, 2011. On March 12, 2013, this court granted that part of petitioner's motion seeking benefit of the Fair Sentencing Act. At his resentencing, held on May 7, 2013, petitioner was sentenced to 198 months' imprisonment. Petitioner appealed his judgment, but the Fourth Circuit Court of Appeals dismissed the appeal.[1]

         On January 25, 2016, petitioner filed the instant § 2255 motion, [2] arguing that in light of Johnson, he no longer qualifies as a career offender. In its motion to dismiss, the government argues petitioner's § 2255 motion should be dismissed for three reasons: 1) petitioner's motion is untimely; 2) petitioner's motion fails due to the appellate waiver in his plea agreement; and 3) Johnson does not undermine petitioner's status as a career offender.

         COURT'S DISCUSSION

         A. Standard of Review

         A 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).

         B. Analysis

         1. Petitioner's Johnson claim fails on the merits.

         Prior 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 his designation as a career offender under U.S.S.G. § 4B1.1 on the basis that Johnson invalidated the residual clause. The Supreme Court recently held, however, that “the Guidelines are not amenable to a vagueness challenge.” Beckles v. United States, 137 S.Ct. 886, 894 (2017). Thus, petitioner may not rely on Johnson's reasoning to challenge his designation as a career offender.

         2. Petitioner's post-Beckles ...


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