United States District Court, E.D. North Carolina, Eastern 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, as corrected and amended (DE 53, 54).
Also before the court is the government's motion to
dismiss, made pursuant to Federal Rule of Civil Procedure
12(b)(6). (DE 58). The issues raised are ripe for ruling. For
the reasons that follow, the court denies petitioner's
motion to vacate and grants the government's motion to
December 15, 2010, pursuant to a written plea agreement,
petitioner pleaded guilty to being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924. On March 25, 2011, this court
sentenced petitioner to 108 months' imprisonment.
Petitioner appealed his judgment, but the Fourth Circuit
Court of Appeals affirmed.
10, 2016, petitioner filed the instant § 2255 motion,
arguing that in light of Johnson v. United States,
135 S.Ct. 2551 (2015), this court erroneously calculated his
s e n t e n c e . O n J u l y 2 5, 2016, the government filed
its motion to dismiss, arguing that petitioner's §
2255 motion should be dismissed for failure to state a claim.
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).
sole claim, petitioner argues that his base offense level was
improperly calculated under U.S.S.G. § 2K2.1. Mot.
Vacate (DE 54) at 4. In particular, petitioner contends that
his convictions for attempt to burn a building and possession
of a weapon of mass destruction are not “crimes of
violence” following Johnson. Id.
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.
case, petitioner relies on Johnson's reasoning
to challenge the application of a similar clause found in
U.S.S.G. § 4B1.2(a) at the time of his sentencing.
See U.S.S.G. § 2K2.1, cmt. n.1 (stating that
§ 4B1.2(a) provides the definition for “crime of
violence” in § 2K2.1). The Supreme Court recently
held, however, that “the Guidelines are not amenable to
a vagueness challenge.” Beckles v. United
States, 137 S.Ct. 886, 894 (2017). Thus, petitioner may
not rely on Johnson's reasoning to attack the
calculation of his Guidelines imprisonment range.
Consequently, petitioner's claim must be dismissed.
Certificate of Appealability
certificate of appealability may issue only upon a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The petitioner
must demonstrate that reasonable jurists could debate whether
the issues presented should be decided differently or that
they are adequate to deserve encouragement to proceed
further. Miller-El v. Cockrell537 U.S. 322, 336-38
(2003); Slack v. Daniel529 U.S. 473, 483-84 (2000).
After reviewing the claim ...