Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Butler v. United States

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

September 18, 2017

AKANNI BUTLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge

         THIS 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).

         I. BACKGROUND

         Petitioner 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).

         The 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).

         On 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.

         Petitioner 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).

         The 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 offender guideline.

         II. 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 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. 1970).

         III. DISCUSSION

         Petitioner 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 § 4B1.1.

         First, 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 clause[1]is 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 offender guidelines.

         Second, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.