United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, made pursuant to 28
U.S.C. § 2255 (DE 158), which challenges
petitioner's career offender sentencing enhancement in
light of the Supreme Court's ruling in Johnson v.
United States, 135 S.Ct. 2551 (2015). The issues raised
are ripe for ruling. For the reasons that follow, the court
denies petitioner's motion to vacate.
April 12, 2010, pursuant to a written plea agreement,
petitioner pleaded guilty to the following: possession with
the intent to distribute more than five grams of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (Count One);
and using and carrying a firearm during and in relation to a
drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1) (Count Two). On December 9, 2010, petitioner was
sentenced to a total of 198 months'
imprisonment. Petitioner did not appeal his judgment.
December 31, 2012, petitioner filed his first motion to
vacate pursuant to 28 U.S.C. § 2255. On April 16, 2013,
petitioner voluntarily dismissed the motion. On February 6,
2014, petitioner filed his second § 2255 motion, and the
motion was subsequently denied. On September 8, 2015,
petitioner filed his third § 2255 motion, and the motion
was dismissed as second or successive without pre-filing
authorization from the Fourth Circuit Court of Appeals.
21, 2016, the Fourth Circuit Court of Appeals granted
petitioner authorization to file a second or successive
motion. The next day, petitioner filed the instant §
2255 motion, arguing that in light of Johnson, he no
longer qualifies as a career offender. On July 28, 2016, this
case was stayed pending the Supreme Court's final
decision in Beckles v. United States, 15-8544. On
April 7, 2017, the stay was lifted, and petitioner was given
thirty days to show cause why his § 2255 motion should
not be dismissed in light of Beckles v. United
States, 137 S.Ct. 886 (2017). Both petitioner and the
government have responded.
Standard of Review
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show 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 by
law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” Id. § 2255(b).
initially relied on Johnson's reasoning to
challenge his designation as a career offender under U.S.S.G.
§ 4B1.1 on the basis that Johnson invalidated
U.S.S.G. § 4B1.2(a)'s residual clause. Mot. Vacate
(DE 158-3) at 5. More recently, petitioner argues that his
predicate conviction for North Carolina common law robbery no
longer qualifies as a “crime of violence” and can
no longer serve as a predicate conviction for application of
the career offender enhancement. Supplemental Br. (DE 167) at
to Johnson, an offense was deemed a “violent
felony” under the Armed Career Criminal Act's
(“ACCA”) so-called “residual clause”
if it was punishable by greater than one year's
imprisonment and “involve[d] conduct that present[ed] a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B). In Johnson, the
Supreme Court struck down the residual clause of the ACCA as
unconstitutionally vague. 135 S.Ct. at 2563.
initial argument fails because the Supreme Court recently
held that “the Guidelines are not amenable to a
vagueness challenge.” Beckles, 137 S.Ct. at
894. Thus, petitioner's status as a career offender is
not subject to constitutional challenge.
post-Beckles argument fails because his challenge to
his advisory guideline range is not cognizable on collateral
review. See United States v. Pregent, 190 F.3d 279,
283-84 (4th Cir. 1999) (“Barring extraordinary
circumstances . . . an error in the application of the
Sentencing Guidelines cannot be raised in a § 2255
proceeding.”); see also Sun Bear v. United
States, 644 F.3d 700, 704 (8th Cir. 2011) (recognizing
that § 2255 proceedings allow petitioners to challenge
errors that result in the “complete miscarriage of
justice, ” not “ordinary questions of guideline
interpretation” (internal quotation marks omitted)).
The Fourth Circuit Court of Appeals similarly held that a
defendant's challenge to his career offender designation
based on the intervening decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), is not
cognizable on ...