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 57), which challenges petitioner's
sentence 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.
November 4, 2013, pursuant to a written plea agreement,
petitioner pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). On April 1, 2014, the court sentenced petitioner
to 115 months' imprisonment. Petitioner appealed his
judgment. The Fourth Circuit Court of Appeals affirmed in
part and dismissed in part.
23, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, arguing that his base
offense level was improperly enhanced after Johnson.
On August 2, 2016, the court stayed this case pending the
Supreme Court's final decision in Beckles v. United
States, 15- 8544. On April 7, 2017, the court lifted the
stay and ordered petitioner to show cause why his § 2255
motion should not be dismissed in light of Beckles v.
United States, 137 S.Ct. 886 (2017). Petitioner failed
to respond, and the time for doing so has passed.
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 sentence is
unconstitutional. Mot. Vacate (DE 57) at 4. In particular,
petitioner contends that his North Carolina conviction for
assault by strangulation is not a “crime of
violence” for purposes of calculating his base offense
level in light of 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 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 challenge the
calculation of his Guidelines imprisonment range.
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 have been 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. McDaniel529 U.S. 473, 483-84
(2000). After reviewing the claims ...