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Charles v. United States

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

September 1, 2017

ROGER DALE CHARLES, II, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:04-cr-00027-MR-DLH-1

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER, DISTRICT JUDGE.

         This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1]; the Government's Motion to Dismiss [Doc. 6]; and Petitioner's Response to Government's Motion to Dismiss [Doc. 7].

         BACKGROUND

         A federal grand jury indicted Petitioner in April 2004 and charged him with possession with intent to distribute crack cocaine and aiding and abetting the same, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count One); possession of a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Two); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three). [Criminal Case No. 2:04-cr-00027 (“CR”), Doc. 2]. That same day, the Government filed an Information in accordance with 21 U.S.C. § 851 (“§ 851 Notice”), notifying Petitioner and this Court that the Government intended to seek an enhanced sentence based on Petitioner's prior drug-trafficking conviction.[1] [CR Doc. 3].

         A jury convicted Petitioner of Counts One and Three; he was acquitted of Count Two. [CR Doc. 55]. Following the jury's verdict, the probation office prepared a presentence report (“PSR”) in which the probation officer calculated a combined adjusted offense level of 33 for Counts One and Three. [CR PSR at ¶ 46]. The probation officer noted that Petitioner qualified as a career offender under U.S.S.G. § 4B1.1, thereby elevating his total offense level to 37. [Id. at ¶¶ 47, 49]. The probation officer further noted that, for the purpose of Count Three, Petitioner also qualified as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), and U.S.S.G. § 4B1.4. [Id.]. This enhancement, however, would have yielded a total offense level of 34, which was lower than the offense level calculated based on the career offender offense level. See U.S.S.G. § 4B1.4(b)(1)(3)(A) (2004). Accordingly, the higher career offender offense level was applied. Based on a total offense level of 37 and a criminal-history category of VI, the probation officer calculated an advisory Sentencing Guidelines range of between 360 months and life in prison for both counts of conviction.[2] [PSR at ¶ 110].

         This Court adopted the presentence report without change and sentenced Petitioner to 360 months' imprisonment on each count, to run concurrently, and a term of ten years of supervised release on Count One and a term of three years of supervised release on Count Three, also to run concurrently.[3] [CR Doc. 64]. The Fourth Circuit affirmed Petitioner's conviction and sentence. United States v. Charles, 195 F.App'x 133 (4th Cir. 2006).

         On June 26, 2015, the Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act (“ACCA”) - which covered any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another” - is “unconstitutionally vague.” 135 S.Ct. 2551, 2557 (2015). Based on that holding, the Court concluded that “imposing an increased sentence under the residual clause . . . violates the Constitution's guarantee of due process.” Id. at 2563.

         On May 17, 2016, Petitioner filed the pending motion to vacate his sentence, arguing that, in light of Johnson, he was improperly sentenced as a career offender and an armed career criminal. [Doc. 1]. On August 8, 2016, the Court placed Petitioner's motion in abeyance pending the outcome of Beckles v. United States, Supreme Court No. 15-8455, in which petitioner argued that his career-offender sentence was erroneously enhanced by an unconstitutionally vague residual clause of U.S.S.G. § 4B1.2. [Doc. 5]. On March 6, 2017, the Supreme Court held in Beckles that “the advisory Guidelines are not subject to vagueness challenges.” 137 S.Ct. 886, 890 (2017). On May 4, 2017, the Government filed the pending motion to dismiss, arguing that, in light of Beckles, Petitioner's motion to vacate should be dismissed. [Doc. 6]. Petitioner filed a response through counsel on May 16, 2017. [Doc. 7].

         STANDARD OF REVIEW

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the motion to vacate can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         DISCUSSION

         As noted, Petitioner challenges his designations as both a career offender and an armed career criminal in light of Johnson. Petitioner's challenge to his career offender status, however, is foreclosed by the Supreme Court's decision in Beckles. See Beckles v. United States, 137 S.Ct. 886, 890 (2017) (holding that “the advisory Guidelines are not subject to vagueness challenges.”). Accordingly, Petitioner's motion is denied and dismissed insofar as he attempts to challenge to his designation as a career offender.

         The Government does not specifically address whether Petitioner's classification as an armed career criminal is now infirm under Johnson. Instead, the Government argues that Petitioner's designation as an armed career criminal is irrelevant because his sentence was based on his classification as a career offender, not an armed career criminal. The Government further argues that, even if Petitioner's sentence on Count Three were improperly enhanced under the ACCA, the Court should decline to review his sentence because his ultimate term of imprisonment (360 months) is unaffected by the alleged improper enhancement. Further, the Government argues, Petitioner has not identified any potential adverse consequences resulting from his classification as an armed career criminal. [Doc. 6 at 3-4].

         In response, Petitioner contends that because his sentence on Count Three was improperly enhanced under the Armed Career Criminal Act, the appropriate remedy would be to vacate both sentences and conduct a full resentencing. [Doc. 7 at 2]. In so arguing, Petitioner cites United States v. Smith, 115 F.3d 241, 245 (4th Cir. 1997). Smith, however, has no application to this case. It stands for the proposition that where a defendant is convicted on two counts and sentenced to consecutive terms of imprisonment and then one of those convictions is vacated, then the Court has jurisdiction to revisit the sentence on the remaining conviction because the prior sentence may have ...


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