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bennett v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 18, 2017

TERRY JACKSON BENNETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr., United States District Judge

         THIS MATTER is before the Court upon Petitioner Terry Jackson Bennett's Motion to Vacate, Set Aside or Correct Sentence, 28 U.S.C. § 2255 (Doc. No. 1) and pro se Motion to Amend his § 2255 Motion to Vacate (Doc. No. 6). Also before the Court is counsel's Motion to Withdraw. (Doc. No. 8).

         I.RELEVANT BACKGROUND

         On May 11, 2006, Bennett pled guilty to Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and Assault, Resist, or Impede a Government Official, in violation of 18 U.S.C. §§ 111(a) and (b). The presentence report (“PSR”) found that Bennett had at least two qualifying prior convictions that triggered the career-offender enhancement under United States Sentencing Guidelines (“U.S.S.G.”) §§ 4B1.1 and 4B1.2: a 1987 North Carolina conviction for armed robbery, a 1993 North Carolina conviction for escape, and a 1992 North Carolina conviction for assault on an officer. PSR ¶¶ 32, 40, 43, 44, Doc. No. 96.[1]

         Based on the career-offender enhancement, Bennett faced a guidelines range of 188 to 235 months. PSR ¶ 90. On August 29, 2006, this Court imposed a sentence of 235 months' imprisonment. Bennett's appeal of this judgment was dismissed in part and affirmed in part by the Fourth Circuit Court of Appeals. United States v. Bennett, 238 F.App'x 935, 2007 WL 2012383 (4th Cir. July 10, 2007) (unpublished).

         Bennett commenced this action on June 20, 2016 by filing a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.[2] (Doc. No. 1). The Federal Defenders of Western North Carolina (“FDWNC”) was appointed to represent Bennett because his Motion sought relief under Johnson v. United States, 135 S.Ct. 2551 (2015). See Standing Order in re: Johnson v. United States, No. 3:13-mc-00196-FDW (W.D. N.C. Nov. 17, 2015). Bennett challenges the enhancement of his sentence under the career offender guidelines. He contends that two of his prior convictions no longer qualify as “crimes of violence” in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015).

         On September 22, 2016, this Court granted the Government's unopposed motion to hold this action in abeyance pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886, (2017). The Supreme Court issued its decision in Beckles on March 6, 2017.

         Subsequently, Bennett sent a letter to this Court stating that he wanted to continue to pursue this action pro se (Doc. No. 5) and filed a Motion to Amend his § 2255 Motion (Doc. No. 6). The Government filed a Response to Bennett's § 2255 Motion (Doc. No. 7), and the FDWNC has moved to withdraw as counsel for Bennett (Doc. No. 8).

         II. § 2255 STANDARD

         To state a viable claim for relief under § 2255, a petitioner must prove that: (1) the sentence imposed “violat[ed] . . . the Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose such a sentence;” or (3) “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The petitioner bears the burden of proof by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). After examining the record in this matter, the Court finds that the claims presented in Bennett's § 2255 Motion can be resolved based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         Bennett contends that this Court violated his right to due process when it found his prior North Carolina convictions for escape and assault on an officer were “crime[s] of violence” supporting career offender status under the sentencing guidelines and a higher guideline sentencing range. Under the 2003 Sentencing Guidelines, which were applied in Bennett's case, see PSR ¶ 18, a defendant is a career offender if,

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony ...

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