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, as corrected and amended (DE 94, 102),
which challenges petitioner's sentence in light of the
Supreme Court's ruling in Johnson v. United
States, 135 S.Ct. 2551 (2015). Also before the court is
the government's motion to dismiss filed pursuant to
Federal Rule of Civil Procedure 12(b)(6). (DE 105). 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 dismiss.
April 16, 2013, petitioner pleaded guilty, pursuant to a
written plea agreement, to possession of machine guns and
aiding and abetting, in violation of 18 U.S.C. §§
922(o), 924(a)(2), and 2. On October 2, 2013, this court
sentenced petitioner to 84 months' imprisonment.
Petitioner did not appeal his judgment.
24, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, arguing that in light of
the Supreme Court's decision in Johnson, his
advisory guideline range was improperly calculated. On August
30, 2016, the government moved to dismiss petitioner's
§ 2255 motion for failure to state a claim upon which
relief may be granted.
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).
Johnson, the Supreme Court addressed whether
increasing a defendant's sentence based on the residual
clause contained in 18 U.S.C. § 924(e)(2)(B)(ii)
violates due process. 135 S.Ct. at 2551. The residual clause
provided that an offense was a “violent felony”
for purposes of § 924(e), if it “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii). The Court in Johnson held that
“[i]ncreasing a defendant's sentence under the
[residual] clause denies due process of law.” 135 S.Ct.
at 2557. The Supreme Court later decided Welch v. United
States, 136 S.Ct. 1257, 1268 (2016), which held that
Johnson applies retroactively to cases on collateral
advisory guideline range was not based on the definition of a
“violent felony” addressed in Johnson.
Rather, petitioner's total offense level was calculated
based on the type of weapons he possessed, the number of
firearms involved in the offense, the fact that the firearms
possessed were stolen, and the fact that he used or possessed
any firearm in connection with another felony offense.
See PSR ¶¶ 40-43. In sum, Johnson
had no effect on petitioner's sentence.
challenge to his advisory guideline range also fails because
it 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 collateral review. See United
States v. Foote, 784 F.3d 931, 932 (4th Cir. 2015)
(holding that “we are hesitant to undermine the
judicial system's interest in finality to classify a
Sentencing Guidelines error as a fundamental defect”).
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. Cockrell, 537 U.S. 322, 336-38
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
After reviewing the claim ...