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 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.
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.
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
January 25, 2016, petitioner filed the instant § 2255
motion,  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.
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).
Petitioner's Johnson claim fails on the merits.
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.
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.
Petitioner's post-Beckles ...