United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
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).
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.
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July 10, 2007) (unpublished).
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. (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).
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.
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).
§ 2255 STANDARD
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.
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