United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on Petitioner's Supplemental
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 12), and on the
Government's Motion to Dismiss, (Doc. No.
Petitioner is represented by Brian Aus. Petitioner contends
that he is entitled to sentencing relief under Johnson v.
United States, 135 S.Ct. 2551 (2015).
federal grand jury indicted Petitioner William Lewis Dontars
Meeks in May 2012, charging him with conspiracy to commit
racketeering, in violation of 18 U.S.C. § 1962(d).
(Crim. Case No. 3:12cr188, Doc. No. 280: Superseding Bill of
Indictment). Petitioner was also charged with conspiracy to
distribute and possess with intent to distribute crack
cocaine, in violation of 21 U.S.C. §§ 846 and
841(a)(1); use of a communication facility in furtherance of
a drug-trafficking offense, in violation of 21 U.S.C. §
843(b); six counts of distribution of powder cocaine and
aiding and abetting the same, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2; three counts of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1); and conspiracy to commit a Hobbs
Act robbery, in violation of 18 U.S.C. § 1951.
(Id.). The Government filed an Information in
accordance with 21 U.S.C. § 851, notifying Petitioner
and this Court that it intended to seek enhanced penalties
based on Petitioner's two prior convictions for felony
drug offenses. (Id., Doc. No. 223: Information to
Establish Prior Conviction).
October 3, 2013, Petitioner entered into a plea agreement
with the United States and pleaded guilty to the
drug-trafficking-conspiracy offense, one felon-in-possession
offense, and one substantive drug-trafficking offense.
(Id., Doc. No. 631 at ¶ 1: Plea Agreement; Doc.
No. 644: Acceptance and Entry of Guilty Plea). In exchange,
the Government agreed to dismiss the remaining counts against
Petitioner and to file an amended § 851 Information,
seeking an enhanced penalty based on only one of
Petitioner's two prior convictions for felony drug
offenses. (Id., Doc. No. 631 at ¶¶ 2,
7(b)). The parties also stipulated that Petitioner was
responsible for more than 28 but less than 112 grams of crack
cocaine for purposes of calculating the advisory Sentencing
Guidelines range of imprisonment. (Id. at ¶
7(a)). In the parties' agreement, Petitioner acknowledged
that “if the Probation Office determine[d] from [his]
criminal history that U.S.S.G. § 4B1.1 (Career Offender)
or U.S.S.G. § 4B1.4 (Armed Career Criminal) applie[d],
such provision may be used in determining the
sentence.” (Id. at ¶ 7(e)). In exchange
for the concessions made by the Government, Petitioner agreed
to waive his right to contest his conviction or sentence
based on 28 U.S.C. § 2255, except for claims of
ineffective assistance of counsel or prosecutorial
misconduct. (Id. at ¶¶ 18-19).
probation office prepared a presentence report in which the
probation officer calculated an adjusted offense level of 30
based on Petitioner's offense characteristics.
(Id., Doc. No. 783 at ¶ 83). The probation
officer also determined that Petitioner qualified as a career
offender under Sentencing Guidelines § 4B1.1, elevating
his adjusted offense level to 37. (Id. at ¶
84). The probation officer noted that Petitioner also
qualified as an armed career criminal under 18 U.S.C. §
924(e) and Sentencing Guidelines § 4B1.4 for purposes of
the felon-in-possession offense. (Id. at ¶ 85).
This enhancement, however, would have yielded an adjusted
offense level of 34, lower than the offense level based on
the career-offender guideline. See U.S.S.G. §
4B1.4(b)(1)(3)(A) (2013). Based on a total offense level,
after a reduction for acceptance of responsibility, of 34 and
a criminal-history category of VI, the probation officer
calculated an advisory Sentencing Guidelines range of between
262 and 327 months in prison. (Id., Doc. No. 783 at
sentencing, the Government dismissed all counts except for
the drug-trafficking-conspiracy and felon-in-possession
counts. (Id., Docket Entry 4/9/14). The Government
also filed a motion for a downward departure under 18 U.S.C.
§ 3553(e). (Id., Doc. No. 786). This Court
granted the Government's motion and departed downward to
an offense level 27, for an advisory range of between 130 and
162 months in prison. (Id., Doc. No. 840 at 4). The
Court sentenced Petitioner to 130 months in prison on both
the drug-conspiracy and felon-in-possession counts, to be
served concurrently. (Id., Doc. No. 839 at 2:
Judgment). Judgment was entered on April 23, 2014.
did not appeal but filed his original motion to vacate, pro
se, under 28 U.S.C. § 2255 on May 7, 2015. (Civ. Case
No. 3:15cv208, Doc. No. 1). Petitioner filed a supplemental
motion to vacate through counsel Brian Aus on March 24, 2016,
arguing that, based on Johnson, he was improperly
sentenced as a career offender and an armed career criminal.
(Id., Doc. No. 12). On March 30, 2016, Petitioner
withdrew his original motion to vacate and decided to proceed
only on the claim presented in his supplemental motion based
on Johnson. (Id., Docket Entry 3/30/16).
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 the Petitioner can be
resolved based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529 (4th Cir.
noted, Petitioner supplemented his motion to vacate to bring
the sole remaining claim, in which he seeks sentencing relief
in light of Johnson v. United States, 135 S.Ct. 2551
(2015), which declared the residual clause of the Armed
Career Criminal Act unconstitutionally vague. On May 4, 2017,
the Government submitted a response and motion to dismiss
following the Supreme Court's decision in Beckles v.
United States, 137 S.Ct. 886 (2017). The Government
first contends that Beckles forecloses
Petitioner's Johnson claim. The Court agrees. In
Beckles, the Court rejected a due process challenge
to the career offender guideline, holding that “the
advisory Guidelines are not subject to vagueness
challenges.” Beckles, 137 S.Ct. at 890.
Petitioner's challenge to his career-offender
classification fails under Beckles. Additionally, as
the record establishes, Petitioner's sentence was
determined based on his classification as a career offender,
not based on his classification as an armed career
criminal. For this reason alone, Petitioner's
motion to vacate will be dismissed.
motion to vacate will also be dismissed because he waived his
right to seek post-conviction relief, except on the bases of
ineffective assistance of counsel or prosecutorial
misconduct, and he does not assert either type of claim in
his supplemental motion. The language and meaning of
Petitioner's post-conviction waiver are “clear and
unmistakable.” United States v. Blick, 408
F.3d 162, 169 (4th Cir. 2005). The waiver plainly includes
within its scope Petitioner's challenge to his sentence
based on an alleged constitutionally erroneous application of
the career-offender guideline or the armed-career-criminal
sentence enhancement. Blick, 408 F.3d at 173
(holding that a constitutional challenge to a sentence under
Booker fell within the scope of a valid waiver);
United States v. Brown, 232 F.3d 399, 404 (4th Cir.
2000) (holding, before Booker, that an appeal waiver
“precludes a claim that the given sentence resulted
from a misapplication of the Guidelines”). Petitioner
does not challenge this Court's finding that his guilty
plea was voluntary and intelligent. See Bousley v. United
States, 523 U.S. 614, 621 (1998). Moreover, because
Petitioner's felon-in-possession sentence is the same
length as his drug-trafficking sentence, he cannot show that
application of the armed-career-criminal enhancement resulted
in a miscarriage of justice. Cf. United States v.
Adams, 814 F.3d 178, 183 (4th Cir. 2016) (holding that
the defendant's undisputed claim of factual innocence
fell outside his appeal waiver because enforcement of the
waiver would have resulted in a miscarriage of justice).
this Court additionally finds that, under the collateral
sentence doctrine, even if this Court improperly classified
Petitioner as an armed career criminal, his sentence must be
affirmed because Beckles forecloses relief from the
career-offender enhancement, and Petitioner has failed to
identify any collateral consequence resulting from his
classification as an armed career criminal. See United
States v. Bradley, 644 F.3d 1213, 1294 (11th Cir. 2011)
(declining to address defendant's challenge to his
sentence on one count of conviction where the court affirmed
a concurrent sentence because the defendant's
“ultimate term of imprisonment would not change even
were [the court] to find error” and the defendant would
suffer “no adverse collateral consequences”);
United States v. Harris, 695 F.3d 1125, 1139 (10th
Cir. 2012) (declining to review challenge to sentence on one
count of conviction where defendant did not challenge
concurrent sentences on other counts); United States v.
Hill, 859 F.2d 325, 326 (4th Cir. 1988) (explaining that
the concurrent sentence doctrine “provides that where a
defendant is serving concurrent sentences and one conviction
is shown to be valid, the court may decline to pass upon the
validity of the other conviction” with “a ...