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Mackey v. United States

United States District Court, W.D. North Carolina, Charlotte Division

August 23, 2017

JASMON DELSHON MACKEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court upon the Government's Motion to Dismiss Petitioner Jasmon Delshon Mackey's pro se Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255. (Doc. No. 5.)

         I. BACKGROUND

         On May 2, 2012, Mackey entered a guilty to plea to conspiracy to possess with intent to distribute 280 or more grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1). Accept. & Entry of Plea, Doc. No. 91.[1] As part of Mackey's plea agreement, the government agreed to dismiss another charge, and the parties agreed that the amount of crack cocaine reasonably foreseeable to Mackey was 297.2 grams, that he should receive an offense-level reduction for acceptance of responsibility, and that either side could argue for a departure or variance at sentencing. Am. Plea Agrmt. ¶ 7, Doc. No. 90. Mackey agreed to waive the right to challenge his conviction and sentence on appeal or in any post-conviction proceeding, except for claims of ineffective assistance of counsel or prosecutorial misconduct. Id. at ¶¶ 18-19.

         A federal probation officer prepared a Presentence Investigation Report (“PSR”) using the 2012 United States Sentencing Guidelines (“U.S.S.G.”) Manual. PSR, Doc. No. 129. The officer calculated a base offense level of 32, based on the amount of crack cocaine attributed to Mackey. Id. at ¶ 30. With a three-level reduction for acceptance of responsibility, Mackey's total offense level was 29. Id. at ¶¶ 37-39. The officer found that Mackey had 22 criminal history points, placing him in criminal history category VI. Id. at ¶¶ 43, 52, 54, 61, 66-67, 68. His advisory sentencing guidelines range was 151-188 months' imprisonment. Id. at ¶ 104.

         The Court accepted the PSR's calculations but varied downward and imposed a sentence of 140 months of imprisonment -- below the advisory guidelines range. Judgment, Doc. No. 206. Judgment was entered in August 2013. Id. Mackey did not file a direct appeal, but in 2015, he successfully moved to reduce his sentence under U.S.S.G. Amendment 782. Doc. No. 267. His sentence was reduced to 130 months' imprisonment. Doc. No. 274.

         On June 24, 2016, Mackey filed a Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255, asserting that he was improperly sentenced based on state convictions that no longer qualify as crimes of violence. (Doc. No. 1.) The Government filed the instant Motion to Dismiss, contending that Mackey's claim is untimely, waived, procedurally defaulted, and without merit. (Mot. to Dismiss 1, Doc. No. 5.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court gave Mackey an opportunity to respond to the Government's motion (Doc. No. 6), and Mackey did so on January 26, 2017 (Doc. No. 9).

         II. STANDARD OF REVIEW

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of an action based upon a “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a viable claim for relief under § 2255, a petitioner must prove that: (1) the sentence imposed “violat[ed] . . . the Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose such a sentence;” or (3) “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). After examining the record in this matter, the Court finds that the claims presented in Mackey's § 2255 Motion can be resolved based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         Generally, a federal district court must dismiss any claim brought in a § 2255 motion that is filed more than one year after the date on which the judgment of conviction became final. See 28 U.S.C. § 2255(f)(1). There is an exception for claims based on rights newly recognized by the Supreme Court and made retroactive on collateral review. § 2255(f)(3).[2] Mackey asserts that his motion is timely because it is based on a new rule of constitutional law recognized by the Supreme Court (Mot. to Vacate 11, Doc. No. 1), in Johnson v. United States, 135 S.Ct. 2551 (2015) (Pet'r's Resp. 1, Doc. No. 9).

         In Johnson, 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) (emphasis added).

         The 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 the residual clause of the ACCA's “violent felony” definition is entitled to relief from his sentence.

         Mackey was not convicted of being a felon in possession of a firearm, in violation of § 922(g). Thus, his sentences were not enhanced under the ACCA. Mackey contends, however, that the holding in Johnson ...


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