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Thomas v. United States

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

May 18, 2017

CARL GARY THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

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

         THIS 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.

         In its 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.

         I. BACKGROUND

         In May 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).

         A grand 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.[1] (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 judgment)).

         Petitioner 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).

         In May 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.).

         Petitioner 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.[2] (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).

         II. STANDARD OF REVIEW

         Rule 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).

         III. DISCUSSION

         As 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.

         Section 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 ΒΆΒΆ at 4, 34, 37). The highest sentence he received for these offenses was 8 ...


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