United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER comes before the Court on Petitioner's Motion to
Vacate Sentence Under 28 U.S.C. § 2255 filed through
counsel, (Doc. No. 1), and related pleadings. For the reasons
stated below, the Court will correct Petitioner's
sentence as to Count Eleven only.
January 3, 2006, the Court sentenced Petitioner to a total of
272 months for three bank robberies (Counts One, Three, and
Five), an armed bank robbery (Count Nine), brandishing a
firearm during and in relation to a crime of violence (Count
Ten), and possessing a firearm as a convicted felon (Count
Eleven). (Case No. 3:05-cr-16, Doc. No. 19: Judgment at 1-2).
The sentence was affirmed on appeal, (Id., Doc. No.
34: Opinion), and not disturbed on collateral review, (Case
No. 3:08-cv-68, Doc. No. 13: Order). Petitioner pro se filed
another collateral attack which was dismissed as successive.
(Case No. 3:14-cv-346, Doc. No. 2: Order).
17, 2016, the United States Court of Appeals for the Fourth
Circuit granted authorization for Petitioner to file a
successive 28 U.S.C. § 2255 motion based on the new rule
of constitutional law announced in Johnson v. United
States, 135 S.Ct. 2551 (2015), made retroactive to cases
on collateral review by Welch v. United States, 136
S.Ct. 1257 (2016). (Doc. No. 1-1: Order). Counsel for
Petitioner then filed the instant motion arguing that he was
improperly sentenced as a career offender under USSG
§4B1.2 and as an armed career criminal under 18 U.S.C.
§ 924(e). (Doc. No. 1 at 1-2). The Government concedes
that Petitioner is eligible for relief on Count Eleven from
the armed career criminal enhancement, but opposes relief on
other counts. (Doc. No. 9: Reply at 5-6). Petitioner seeks
resentencing on all counts under the “sentencing
package doctrine.” (Doc. No. 10: Supp. Mem. at 1).
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. The Court has
considered the record in this matter and applicable authority
and concludes that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Petitioner filed the instant motion, the Supreme Court
rejected a Johnson challenge to the advisory career
offender guideline. Beckles v. United States 137
S.Ct. 886, 891-892 (2017). Nevertheless, Petitioner requests
a full resentencing because he “was sentenced for
multiple, various counts of conviction including an erroneous
armed career criminal count.” (Doc. No. 10: Supp. Mem.
at 1). The Fourth Circuit has recognized a district
court's authority to consider the sentence in the
aggregate upon a successful collateral attack of one count of
conviction that “radically changes the sentencing
package.” United States v. Smith, 115 F.3d
241, 245 (4th Cir. 1997) (internal quotations and citations
omitted). However, a district court is not required to
conduct a resentencing in resolving every § 2255
petition. United States v. Hadden, 475 F.3d 652,
668-669 (4th Cir. 1997) (“The text of § 2255
clearly affords the district courts the authority to
‘correct' a prisoner's unlawful sentence
without conducting a formal ‘resentence[ing]'
hearing ...” (brackets in original)).
Court previously found Petitioner qualified as a career
offender under USSG §4B1.1(a), and no developments in
the law affect that decision. (Case No. 3:05-cr-16: Statement
of Reasons at 1 (adopting Presentence Report without
change)). The offense level was set at thirty-four based on
§4B1.1(b)(B) and the twenty-five year maximum penalty
for armed bank robbery. (Id., Doc. No. 33:
Presentence Report at 9). With acceptance of responsibility,
the adjusted offense level was thirty-one. (Id.).
Petitioner's fourteen criminal history points and his
career offender status yielded a criminal history category of
VI, resulting in an advisory guideline range of 188-235
months for Counts One, Three, Five, and Nine, plus the
mandatory minimum eighty-four months for Count Ten
(brandishing a firearm in violation of § 924(c)).
(Id. at 14, 17). Those calculations are not altered
by correcting Petitioner's sentence in Count Eleven to
remove the now unlawful armed career criminal enhancement,
consistent with Johnson and the Government's
concession; the maximum sentence on Count Eleven is simply
lowered to 120 months. Therefore, the Court will decline to
exercise its discretion to resentence Petitioner on all
counts in the circumstances of this case.
THEREFORE, ORDERED that:
Petitioner's Motion to Vacate, (Doc. No. 1), is GRANTED
and his sentence on Count Eleven will be CORRECTED to 120
months' imprisonment and 3 years' supervised release.
An amended judgment shall be issued with all other terms and
conditions remaining the same.
to Petitioner's denied or dismissed claims, pursuant to
Rule 11(a) of the Rules Governing Section 2255 Cases, this
Court declines to issue a certificate of appealability, as
Petitioner has not made a substantial showing of a denial of
a constitutional right. 28 U.S.C. § 2253(c)(2);
Miller El v. Cockrell, 537 U.S. 322, 33638 (2003)
(in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong); Slack v. McDaniel, 529 U.S. 474, 484
(2000) (holding that when relief is denied on procedural
grounds, a petitioner must ...