United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon Petitioner Marc
Ashley Barnes's pro se Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. No.
1), and motion for appointment of counsel (Doc. No. 3).
April 28, 2011, Barnes entered a straight-up guilty plea to
one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g). Accept. & Entry of
Plea, Doc. 17. Subsequently, a probation officer prepared
a presentence investigation report (“PSR”) for
sentencing purposes. PSR, Doc. No. 24. Applying the 2011
United States Sentencing Guidelines (“U.S.S.G.”)
Manual, the officer concluded that Barnes's total offense
level was 33 based upon a cross-reference to the kidnapping
guidelines, U.S.S.G. § 2A4.1, and a three-level
reduction for acceptance of responsibility. PSR ¶¶
17-28. The probation officer determined that Barnes's
criminal record placed him in criminal history category IV.
Id. at ¶¶ 40-42.
officer next calculated a guidelines sentencing range of 188
months to 235 months imprisonment. Id. at ¶ 62.
She also determined, however, that the statutory maximum term
of imprisonment under 18 U.S.C. §§ 922(g)(1) and
924(a) was 10 years in prison. PSR ¶ 61. Because the
statutorily authorized maximum sentence of 10 years was less
than the minimum of the applicable guideline range (188
months), Barnes's guideline term of imprisonment became
120 months, see U.S.S.G. § 5G1.1(a). PSR ¶
Court sentenced Barnes to 120 months in prison. J., Doc. No.
27. Judgment was affirmed on appeal. United States v.
Barnes, 495 F. App'x 310, 2012 WL 4828375 (4th Cir.
24, 2016, Barnes timely filed the instant Motion to Vacate,
see § 2255(f)(3). He contends that he is
entitled to resentencing based on the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), which is retroactive to cases on collateral review,
Welch v. United States, 136 S.Ct. 1257 (2016). (Mot.
to Vacate, Doc. No. 1.)
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 claim presented in the Motion to Vacate
can be resolved based on the record and governing case law.
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 2557. 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 subject 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
Barnes was convicted of being a felon in possession of a
firearm, in violation of § 922(g), he was not determined
to be an armed career criminal under § 924(e)(2). PSR
¶¶ 18-28. Consequently, Barnes was not subject to a
mandatory minimum sentence under the ACCA, see PSR
¶¶ 61-62; J. 2, Doc. No. 27, and the holding in
Johnson does not apply to his