United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge.
MATTER is before the Court on a motion to vacate, set aside,
or correct sentence, pursuant to 28 U.S.C. § 2255, in
which Petitioner seeks vacatur of his 2006 conviction in this
Court for being a felon in possession of a firearm, pursuant
to 18 U.S.C. § 922(g)(1), in light of the Fourth
Circuit's decision in United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc). Petitioner also seeks
relief from a 2015 judgment revoking Petitioner's
supervised release and sentencing him to 24 months in prison,
arising from the felon-in-possession conviction. Petitioner
is represented by Joshua Carpenter of the Federal Public
Defenders of Western North Carolina.
response, the Government agrees that Petitioner's
felon-in-possession conviction should be vacated. The
Government argues, however, that Petitioner should not
receive relief from this Court's 2015 judgment revoking
Petitioner's supervised release and sentencing him to 24
months in prison. For the following reasons, the Court grants
Petitioner's motion to vacate his underlying
felon-in-possession conviction. The Court further agrees with
Petitioner that he is entitled to relief from the 2015
judgment revoking Petitioner's supervised release and
sentencing him to 24 months in prison.
2003, a confidential source informed law enforcement officers
that Petitioner Carl Gary Thomas was selling crack cocaine
from his home in Monroe, North Carolina. (Crim. Case No.
4:04-cr-185-RJC-DCK-1, PSR at ¶¶ 9-10). After this
source bought cocaine from Petitioner in a monitored
transaction, officers obtained a search warrant for
Petitioner's home. (Id.). During their search,
officers found drugs, including cocaine and marijuana, as
well as a Hi-Point 9mm rifle. (Id. at ¶ 10-11).
jury charged Petitioner with possession with intent to
distribute marijuana and cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b) (Count One); using and carrying a
firearm in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (Count Two); and
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count Three). (Id. at ¶¶
2-4). Petitioner's status as a felon was based on his two
prior North Carolina convictions for possession with intent
to sell/deliver cocaine. (Id. at ¶¶ 4, 34,
37). A state court sentenced Petitioner to 6-8 months of
imprisonment for his 2000 conviction and to 8-10 months of
imprisonment for his 2001 conviction. (Id. at
¶¶ 34, 37; Civ. Doc. No. 4-1 (state court
pleaded guilty, pursuant to a written plea agreement, to
being a felon in possession of a firearm, and the Government
agreed to dismiss the remaining charges. (Id., Doc.
No. 23 at 1: Plea Agrmt.). A probation officer prepared a
presentence report, calculating Petitioner's total
offense level as 27 and his criminal history category as V.
(Id., PSR at ¶¶ 25, 41). The guidelines
range was 120-150 months of imprisonment, but it became 120
months due to the statutory maximum. (Id. at ¶
104 (handwritten notations)). This Court sentenced Petitioner
to 41 months of imprisonment and three years of supervised
release, entering judgment on May 12, 2006. (Id.,
Doc. No. 26: Judgment).
2009, Petitioner was released from confinement and began
serving his term of supervised release. (Id., Doc.
No. 31: Probation Petition). In July and December of 2011,
this Court modified his conditions of supervised release.
(Id., Doc. Nos. 29, 30: Orders Modifying
Conditions/Term of Supervision). In March 2012, a warrant was
issued for Petitioner's arrest for violations of the
conditions of his supervised release, including committing
new violations of law. (Id., Doc. No. 31). The new
violations of law were based on 2011 state charges of
kidnapping, breaking and entering, and assault and battery,
as well as 2012 state charges of possession with intent to
manufacture and deliver cocaine, possession of a firearm by a
felon, maintaining a dwelling for the distribution of drugs,
and possession of drug paraphernalia. (Id. at 1-2).
In 2013, a state court convicted Petitioner of possession
with intent to sell and deliver cocaine, possession of drug
paraphernalia, maintaining a dwelling for possessing a
controlled substance, and being a habitual felon.
(Id., Doc. No. 32: Addendum to Supervised Release
Violation Report). The state court sentenced Petitioner to
92-123 months of imprisonment. (Id.).
was not arrested on the federal revocation charges until
February 2015. See (Id., Doc. entry dated
Feb. 2, 2015). After a revocation hearing, where Petitioner
admitted to violating the terms of his supervised release,
this Court sentenced Petitioner to 24 months of imprisonment,
to be served consecutively to his state
sentence. (Id., Doc. No. 43: Judgment on
Revocation Proceedings). Judgment was entered on June 3,
2015. (Id.). Petitioner filed a pro se motion on
August 16, 2016, citing Rule 60 of the Federal Rules of Civil
Procedure and the writ of error coram nobis, and arguing that
his Section 922(g)(1) conviction should be vacated pursuant
to Simmons. (Civ. Doc. No. 1 at 1-2). Noting that
Petitioner's filing was not on a Section 2255 form, had
not been signed under penalty of perjury, and did not appear
to be timely, this Court allowed Petitioner additional time
to clarify what type of motion he was bringing and to file a
proper Section 2255 motion. (Civ. Doc. No. 2 at 2-3). The
Federal Public Defenders of Western North Carolina entered an
appearance on Petitioner's behalf and filed the present
Section 2255 motion on October 11, 2016. (Civ. Doc. Nos. 3,
4). In his motion, Petitioner asks the Court to vacate his
Section 922(g) conviction and to strike the term of
imprisonment imposed for the revocation of his supervised
release. (Civ. Doc. No. 4 at 1, 6).
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the argument presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
noted, Petitioner first seeks to have this Court vacate his
felon-in-possession conviction. Petitioner contends that,
pursuant to the Fourth Circuit's decision in
Simmons, he was erroneously convicted of being a
felon-in-possession of a firearm. The Government has waived
the statute of limitations as to this claim and concedes that
Petitioner's motion to vacate his conviction should be
granted. For the following reasons, the Court agrees that
Petitioner's Section 922(g) conviction must be vacated in
light of Simmons.
922(g) of Title 18 of the United States Code prohibits anyone
“who has been convicted in any court of, a crime
punishable by imprisonment by a term exceeding one
year” from possessing a firearm. 18 U.S.C. §
922(g)(1). In Simmons, the Fourth Circuit held en
banc that, for a prior North Carolina conviction to serve as
a predicate felony offense, the individual defendant must
have been convicted of an offense for which that defendant
could be sentenced to a term exceeding one year.
Simmons, 649 F.3d at 243. The Simmons court
expressly overruled its prior decision in United States
v. Harp, 406 F.3d 242 (4th Cir. 2005), in which the
court had held that in determining “whether a
conviction is for a crime punishable by a prison term
exceeding one year [under North Carolina law] we consider the
maximum aggravated sentence that could be imposed for that
crime upon a defendant with the worst possible criminal
history.” 649 F.3d at 243 (quoting Harp, 406
F.3d at 246) (emphasis omitted). Here, Petitioner's
status as a felon was predicated on his 2000 and 2001
convictions for possession with intent to sell/deliver
cocaine. See (Crim. Case No. 4:04-cr-185-RJC-DCK-1,
PSR ¶¶ at 4, 34, 37). The highest sentence he
received for these offenses was 8 ...