United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER, DISTRICT JUDGE.
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].
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. [CR Doc. 3].
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. [PSR at ¶ 110].
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. [CR Doc. 64]. The Fourth Circuit affirmed
Petitioner's conviction and sentence. United States
v. Charles, 195 F.App'x 133 (4th Cir. 2006).
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.
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].
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).
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.
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].
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 ...