United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court upon Petitioner Donnell
Alexander Taylor's pro se Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. No.
1), and “Motion to Supplement” his § 2255
Motion to Vacate (Doc. No. 5).
December 4, 2006, a federal jury convicted Taylor of
possession with intent to distribute crack cocaine and aiding
and abetting the same, in violation of 21 U.S.C. §§
841(a)(1), 851 and 18 U.S.C. § 2 (Count One); possession
of a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (Count Two),
and possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g) (Count Three). Verdict, Doc.
Prior to sentencing, a presentence report (“PSR”)
was prepared using the 2006 United States Sentencing
Guidelines (“U.S.S.G.”) Manual, and the probation
officer concluded Taylor qualified for an enhanced sentence
as a career offender under U.S.S.G. § 4B1.1. PSR, Doc.
69 ¶¶ 20, 32, 34-35. According to the PSR, Taylor
qualified as a career offender under U.S.S.G. § 4B1.1,
based on his prior North Carolina convictions for Assault
with Deadly Weapon Inflicting Serious Injury
(“AWDWISI”), Possession With Intent to
Manufacture, Sell or Deliver Marijuana, and Possession With
Intent to Sell and Deliver Cocaine. Id. at ¶
probation officer calculated a guidelines sentencing range of
420 months to life in prison for all three counts.
Id. at ¶ 64. The statutory term of imprisonment
for Count One was 120 months to life in prison, while Count
Two carried a mandatory consecutive sentence of at least five
years. Id. The statutory term for Count Three was a
maximum of 10 years. Id.
Court sentenced Taylor to 480-month and 120-month concurrent
prison terms for Counts One and Three, respectively, and to a
term of 60 months' imprisonment for Count Two, to run
consecutively to Counts One and Three. Judgment 2, Doc. 54.
Judgment was affirmed on appeal. United States v.
Taylor, 283 F. App'x 172, 176 (4th Cir. 2008)
filed a timely § 2255 motion to vacate, which this Court
dismissed. Order, Taylor v. United States, No.
3:09-cv-00089-FDW (W.D.N.C July 20, 2009), Doc. No. 2.
Thereafter, he filed several unauthorized successive motions
to vacate, which were dismissed.
20, 2016, Taylor sought authorization to file a successive
motion to vacate in the Fourth Circuit Court of Appeals,
contending that under the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
made retroactive to cases on collateral review, Welch v.
United States, 136 S.Ct. 1257 (2016), he no longer
qualifies as a career offender under the federal sentencing
guidelines and should be resentenced. (Pet., Doc. No. 1.) The
Fourth Circuit granted Taylor's motion and authorized him
to file a successive § 2255 motion based on
Johnson. (4th Cir. Order, Doc. No. 1-1.) Taylor
filed the instant Motion to Supplement his § 2255 Motion
to Vacate on November 14, 2016. (Doc. No. 5).
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
in the United States District Court, sentencing courts are
directed to 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. If it plainly appears that the petitioner is not
entitled to relief, the court must dismiss the motion.
See id. After conducting its initial review, the
Court finds that the claims presented in the Motion to Vacate
can be resolved based on the record and governing case law.
See Raines v. United States, 423 F.2d 526, 529 (4th
Johnson v. United States, the Supreme Court held
that the residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague under the Due Process Clause of the
Fifth Amendment. 135 S.Ct. at 2558. The ACCA provides for a
mandatory minimum sentence of 15 years in prison for a
defendant convicted of being a felon in possession of a
firearm, 18 U.S.C. § 922(g), if the defendant has at
least three prior convictions for serious drug offenses or
violent felonies. See § 924(e)(1).
“Violent felony” is defined in the ACCA as
“any crime punishable by imprisonment for a term
exceeding one year” that “(i) has as an element
the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” § 924(e)(2)(B)
italicized closing words of § 924(e)(2)(B) constitute
the ACCA's residual clause. Johnson, 135 S.Ct.
at 2556. The Court left intact the remainder of the
ACCA's “violent felony” definition, including
the four enumerated offenses and the “force
clause.” Id. at 2563. Thus, a defendant who
was sentenced under the ACCA to a mandatory minimum term in
prison based on a prior conviction that satisfies only ...