United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 238, 241]. The government has moved to
dismiss the petition, [DE 245], petitioner has responded, [DE
249], and the matter is ripe for disposition. For the reasons
discussed below, the government's motion to dismiss is
granted and petitioner's motion is dismissed.
October 24, 2012, petitioner pleaded guilty, without a
written plea agreement, to conspiracy to distribute and
possess with the intent to distribute five kilograms or more
of cocaine and 1, 000 kilograms or more of marijuana, in
violation of 21 U.S.C. § 846 (Count One) and possession
with the intent to distribute more than 100 kilograms or
marijuana and aiding and abetting, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2 (Count Two). [DE 89].
On June 6, 2013, the Court sentenced petitioner to life
imprisonment on Count One and 480 months' imprisonment on
Count Two, with the terms to run concurrently with each
other. [DE 154, 155].
appealed his judgment. [DE 157]. On March 3, 2015, the United
States Court of Appeals for the Fourth Circuit vacated and
remanded for resentencing. [DE 206]. On June 11, 2015, the
Court resentenced petitioner to 210 months' imprisonment.
[DE 227, 228]. Petitioner did not appeal that judgment.
30, 2016, petitioner filed the instant motion under 28 U.S.C.
§ 2255 seeking to vacate his sentence. [DE 238, 241].
Petitioner raises two challenges to the calculation of his
advisory guideline range. First, he argues that his guideline
range was calculated in violation of Johnson v. United
States, 135 S.Ct. 2551 (2015), and Welch v. United
States, 136 S.Ct. 1257 (2016). [DE 241 at 4]. Second
(and related to the first claim), he argues that his due
process rights were violated when his offense level was
increased by two levels based on a firearms enhancement. [DE
241 at 5; DE 238 at 2]. The government responded, arguing
that the motion should be dismissed for failure to state a
claim upon which relief can be granted under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. [DE 245].
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible.'" Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "Under § 2255(b), [u]nless the motion and
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court must grant a
prompt hearing to determine the issues and make findings of
fact and conclusions of law with respect thereto."
United States v. Thomas, 627 F.3d 534, 539 (4th Cir.
2010) (internal quotation omitted). However, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
provides for enhanced punishments for those offenders who
have three prior convictions for violent felonies or serious
drug offenses. 18 U.S.C. § 924(e)(1). A violent felony
is defined by the statute as any crime punishable by more
than one year imprisonment that
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another;
18 U.S.C. § 924(e)(2)(B). In Johnson, the
Supreme Court addressed the constitutionality of the residual
clause of ACCA's violent felony definition, which defines
a violent felony to include one which "otherwise
involves that presents a serious potential risk of physical
injury to another." 135 S.Ct. 2557. The Court held that
the residual clause is unconstitutionally vague and that to
increase a defendant's sentence under that clause denies
the defendant due process of law. Id. at 2557. In
Welch v. United States, the Supreme Court held that
Johnson announced a substantive rule that applies
retroactively on collateral review. 136 S.Ct. 1257 (2016).
contrast to the ACCA, the Supreme Court has held that the
Federal Sentencing Guidelines, including U.S.S.G. §
4Bl.2(a)'s residual clause, are not subject to vagueness
challenges under the Due Process Clause. Beckles v.
United States, 137 S.Ct. 886, 894 (2017) ("Because
they merely guide the district courts' discretion, the
Guidelines are not amenable to a vagueness challenge.").
Moreover, the Fourth Circuit Court of Appeals has recognized
that a challenge to the application of the sentencing
guidelines is not cognizable in a § 2255 proceeding.
United States v. Foote, 784 F.3d 931, 931 (4th Cir.
2015), cert, denied 135 S.Ct. 2850 (2015)
("[B]y its terms, § 2255 does not allow for a
court's consideration and correction of every alleged
sentencing error."). A petitioner seeking relief under
§ 2255 must make one of four types of arguments:
 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