United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN United States District Judge
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.
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).
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.
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,
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). 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).
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
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.
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.
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
 The convictions occurred on occasions
different from one another and were punishable by more than a
year of imprisonment.
 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 ...