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Deese v. United States

United States District Court, E.D. North Carolina, Southern Division

July 17, 2017

CHARLES RAY DEESE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on petitioner's motion for reconsideration (DE 89). In his motion, petitioner renews arguments made in his § 2255 motion and motion to amend and also raises new arguments. See id.

         Federal Rule of Civil Procedure 59(e) permits a court to alter or amend a judgment. Fed.R.Civ.P. 59(e). Although the rule itself does not set forth any guidelines as to when such a motion should be allowed, the Fourth Circuit Court of Appeals has recognized three grounds for amending a judgment pursuant to Rule 59(e): “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available [previously]; or (3) to correct a clear error of law or prevent manifest injustice.” Sloas v. CSX Transp., Inc., 616 F.3d 380, 385 n.2 (4th Cir. 2010) (alteration added and citation omitted). Allowing a Rule 59(e) motion is an “extraordinary remedy, ” and therefore, it should be “applied sparingly.” Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012). A “district court has considerable discretion in deciding whether to modify or amend a judgment.” Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 241 n.8 (4th Cir. 2008).

         Petitioner raises two new arguments before this court. See Mot. Recons. (DE 89). First, petitioner contends that his North Carolina convictions for breaking or entering do not qualify as “violent felonies” under the armed career criminal act (“ACCA”) because North Carolina burglary qualifies as “violent felony” only if it qualifies as a generic burglary under the enumerated offense clause. Id. at 4-6. Petitioner asserts that North Carolina burglary is broader than generic burglary. Id. at 5. Next, petitioner argues that he is entitled to relief under Amendment 798 to the United States Sentencing Guidelines, which deleted “burglary” from the list of enumerated offenses. Id. at 6-7. This court will address each argument in turn.

         With respect to his first argument, petitioner contends that his North Carolina convictions for breaking or entering do not qualify as “violent felonies” under the ACCA because North Carolina burglary qualifies as a “violent felony” only if it qualifies as a generic burglary under the enumerated offense clause. Id. at 4-6. Petitioner has at least three North Carolina convictions for breaking or entering, in violation of N.C. Gen. Stat. § 14-54(a). See PSR ¶¶ 10, 13, 15.[1]

         Prior to the Supreme Court's ruling in Johnson, the Fourth Circuit Court of Appeals held that the North Carolina breaking or entering statute, § 14-54(a), “as interpreted by the North Carolina Supreme Court, sweeps no more broadly than the generic elements of burglary.” United States v. Mungro, 754 F.3d 267, 272 (4th Cir. 2014).[2] In short, the Fourth Circuit determined that a conviction under § 14-54(a) “qualifies as an ACCA predicate offense.” Id. Following the Supreme Court's ruling in Johnson, the Fourth Circuit has affirmed its analysis in Mungro and reiterated that a North Carolina conviction for breaking or entering qualifies as a generic burglary conviction. See United States v. Thompson, 615 F. App'x 160, 161 (4th Cir. 2015) (holding that appellant's claim was foreclosed because the issue of whether North Carolina's breaking or entering offense is broader than generic burglary was raised and decided in Mungro).

         In sum, Johnson did not impact the use of petitioner's North Carolina breaking or entering convictions as ACCA predicate convictions. See United States v. Bolden, 645 F. App'x 282, 283 (4th Cir. 2016) (denying authorization to file a successive § 2255 motion because defendant's prior conviction for breaking or entering in North Carolina was not impacted by Johnson). Petitioner has at least three qualifying predicate convictions and properly remains classified as an armed career criminal. Accordingly, petitioner's first argument must fail.

         In his second argument, petitioner contends that he is entitled to relief under Amendment 798 to the United States Sentencing Guidelines. Mot. Recons. (DE 89) at 6-8. In particular, petitioner contends that he is entitled to relief because Amendment 798 deleted “burglary” from the list of enumerated offenses. Id. at 6-7.

         Amendment 798, effective August 1, 2016, eliminated the residual clause from U.S.S.G. § 4B1.2(a)(2). See U.S.S.G. Supp. to App. C, amend. 798. Amendment 798 was not made retroactive, and therefore, it does not apply to petitioner. See U.S.S.G. § 1B1.10(d) (listing amendments applied retroactively pursuant to 18 U.S.C. § 3582(c)(2)); see also U.S.S.G. § 1B1.11(a) (“The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced.”). Consequently, petitioner's second argument must fail.

         In sum, petitioner's renewed arguments remain without merit, and petitioner's new arguments present no basis for this court to disturb its May 26, 2017, ruling. Accordingly, petitioner's motion for reconsideration (DE 89) is DENIED. ORDERED.

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Notes:

[1] The convictions occurred on occasions different from one another and were punishable by more than a year of imprisonment.

[2] In Mungro, defendant argued that his prior North Carolina convictions for breaking or entering did not qualify as ACCA predicates because “the elements of ‘breaking or entering' apply to a broader range of conduct than the generic ...


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