United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court upon Petitioner Lavandus
Houston's pro se Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 1.)
February 4, 2013, Houston entered a guilty plea to conspiracy
to distribute and to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C.
§§ 846, 841(b)(1)(B) (Count One). Acceptance and
Entry of Guilty Plea, Doc. No. 129. As part of Houston's
plea agreement, the government dismissed another
charge and the parties agreed on the amount of
controlled substance known to, or reasonably foreseeable by,
Houston. Plea Agr. ¶ 7a, Doc. No. 128. The parties also
agreed that the cross-reference to second-degree murder under
United States Sentencing Guideline (“U.S.S.G.”)
§ 2D1.l(d)(1) applied. Id. at ¶ 7c.
to sentencing, a federal probation officer calculated
Houston's adjusted offense level and criminal history
category. Presentence Investigation Report
(“PSR”), Doc. No. 167. Houston's adjusted
offense level was based on the quantity of drugs attributable
to him, PSR ¶ 47 (citing U.S.S.G. §2D1.1 (2013)),
the second-degree murder cross-reference, id. at
¶ 49 (citing U.S.S.G. §§ 2A1.2, 2D1.l(d)(1)
(2013), and reductions for acceptance of responsibility,
id. at ¶¶ 55-56 (citing §3E1.1
(2013)). The Court sentenced Petitioner to 210 months in
prison, followed by a period of supervised release. J., Doc.
No. 184. Judgment was entered on May 5, 2014. Id.
The Fourth Circuit Court of Appeals dismissed Houston's
direct appeal on March 4, 2015. Order, Doc. No. 225.
instant Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255(f)(3), Houston asserts 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 Sentencing Guidelines. (Mot. 2,
Doc. No. 1.) He argues that the Court erred in enhancing his
sentence under the career offender guidelines, and that his
sentence violates the Due Process Clause of the United States
Consitution. (Mot. 2.)
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 part 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).
was not convicted of being a felon in possession of a
firearm, in violation of § 922(g). Thus, his sentence
was not enhanced under the ACCA. He contends, however, that
the holding in Johnson extends to the Sentencing
Guidelines, particularly career offender guidelines 4B1.1 and
4B1.2. (Mot. 2-3.) Under the career offender guidelines, a
defendant's sentence may be increased if:
(1) the defendant was at least eighteen years old at the time
the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
§ 4B1.1(a) (2013).
argument is foreclosed by the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886 (2017). In
Beckles, the Supreme Court held that the
Johnson decision ...