United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge
MATTER is before the Court on Petitioner’s
pro se Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255, (Doc. No. 12), and on
the Government’s Motion to Dismiss, (Doc. No. 5).
Petitioner seeks relief pursuant to Johnson v. United
States, 135 S. Ct. 2551 (2015).
was charged along with fourteen co-defendants in a narcotics
distribution conspiracy. (3:15-cr-24-RJC-DCC, Doc. No. 3).
The counts pertaining to Petitioner are: Count (1),
conspiracy to possess with intent to distribute at least 28
grams of a mixture and substance containing a detectable
amount of cocaine base; and Counts (50), (59), (60),
possession with intent to distribute cocaine base.
(Id.). Petitioner pled guilty to Count (50) pursuant
to a written plea agreement and factual proffer.
(Id., Doc. Nos. 142, 143).
Presentence Investigation Report (“PSR”) scored
the base offense level as 18 because the offense involved at
least 14 but less than 18 grams of cocaine base.
(Id., Doc. No. 247 ¶ 14). Petitioner is a
career offender because he was at least 18 years old at the
time of the instant offense, which is either a crime of
violence or a controlled substance offense, and Petitioner
has at least two prior felony convictions of either a crime
of violence or controlled substance offense – North
Carolina convictions for conspiracy to commit robbery with a
dangerous weapon and felony conspiracy to commit robbery with
a dangerous weapon. See (Id., ¶¶
26, 28). The career offender offense level is 32.
(Id., ¶ 20). Three levels were deducted for
acceptance of responsibility, resulting in a total offense
level of 29. (Id., ¶¶ 21-23). The
PSR’s criminal history section scores six criminal
history points and a criminal history category of III.
(Id., ¶ 36). However, the criminal history
category for a career offender is VI. (Id., ¶
37). The resulting advisory guidelines range was 151 to 188
months’ imprisonment followed by three years of
supervised release, and fines between $15,000 and $1,000,000.
(Id., ¶¶ 72, 75, 81).
March 3, 2016, the Court adjudicated Petitioner guilty of
Count (50) and dismissed Counts (1), (59), and (60).
(Id., Doc. No. 321). The Court adopted the PSR
without change and imposed a below-guidelines sentence of 96
months’ imprisonment based on Petitioner’s
substantial assistance and the factors set forth in 18 U.S.C.
§ 3553(a). (Id.). Petitioner did not appeal.
filed the instant pro se § 2255 motion to
vacate on June 13, 2016, arguing that: (1) trial counsel was
ineffective for failing to object to Petitioner’s
career offender designation because he does not have any
qualifying predicate offenses pursuant to Johnson;
and (2) the career offender sentence violates due process
because Petitioner does not have two qualifying predicate
offenses to support career offender sentencing. (Doc. No. 1).
Court stayed this action on September 6, 2016, pending the
United States Supreme Court’s resolution of Beckles
v. United States. (Doc. No. 3, 4). Beckles has
now been resolved, 137 S.Ct. 886 (2017), and the stay is
moot. The Government has filed a motion to dismiss the §
2255 motion to vacate based on Beckles. (Doc. No.
5). Petitioner concedes that Claim (2) is foreclosed by
Beckles and withdraws it. (Doc. No. 6 at 10).
However, he continues to assert that he is entitled to relief
due to ineffective assistance of counsel at sentencing in
Claim (1), because his North Carolina convictions are not
“crimes of violence” pursuant to the career
STANDARD OF REVIEW
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 argument presented by the Petitioner can be
resolved based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529 (4th Cir.
argues that counsel was ineffective for failing to object to
Petitioner’s career offender designation at sentencing
because his North Carolina conviction for conspiracy to
commit robbery with a dangerous weapon is not a “crime
of violence” under United States Sentencing Guidelines
Petitioner’s reliance on Johnson is misplaced
because the Supreme Court’s void-for-vagueness holding
does not apply to the United States Sentencing
Guidelines’ career offender provision. Johnson
announced that the Armed Career Criminal Act’s
(“ACCA”) residual clauseis void for vagueness, and
that holding is a retroactively applicable right.
Id.; Welch v. United States, 136
S.Ct. 1257, 1265 (2016). Johnson addresses only
ACCA’s residual clause and “does not call into
question application of the Act to the four enumerated
offense, or to the remainder of the Act’s definition of
a violent felony.” Johnson, 135 S.Ct. at 2563.
Nor does Johnson apply to the advisory sentencing
guidelines because “the Guidelines are not amenable to
a vagueness challenge.” Beckles, 137 S.Ct. at
894. Counsel cannot be deemed ineffective for failing to
raise a meritless Johnson challenge to the career
counsel was not ineffective for failing to object at
sentencing because his prior convictions are “crimes of
violence” under the Guidelines’ career offender
provision. A “crime of violence” for purposes of
the career offender guideline means any offense under ...