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
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), in which he seeks relief
pursuant to Johnson v. United States, 135 S.Ct. 2551
found Petitioner guilty of a single count of unlawful
possession of a firearm and/or ammunition by a convicted
felon in the underlying criminal case. (Crim. Case No.
3:11-cr-179-RJC-DCK, Doc. No. 22).
presentence investigation report (“PSR”) scored
the base offense level as 24 because Petitioner committed any
part of the offense after sustaining at least two crimes of
violence or controlled substance offenses, i.e.,
Ohio convictions for felonious assault with a firearm and
robbery. (Id., Doc. No. 45 at ¶ 19). No
specific offense characteristics or Chapter Four enhancements
were applied. (Id.). Therefore the total offense
level was 24. (Id. at ¶ 27). The criminal
history section scored a total of 10 criminal history points
and criminal history category of V. (Id. at ¶
50). The resulting guideline range was 92 to 115 months'
imprisonment, between one and three years of supervised
release, and fines between $10, 000 and $100, 000.
(Id. at ¶¶ 78, 81, 87).
Court sentenced Petitioner at the bottom of the advisory
guideline range to 92 months' imprisonment followed by
three years of supervised release. (Id., Doc. No.
argued on direct appeal that the evidence was insufficient to
support his conviction because the Government did not prove
that the item he possessed satisfied the statutory definition
of a firearm. The Fourth Circuit affirmed on September 3,
2013. United States v. Derring, 539 Fed.Appx. 114
(4th Cir. 2013).
January 13, 2014, Petitioner filed a pro se §
2255 motion to vacate raising claims of ineffective
assistance of trial and appellate counsel and prosecutorial
misconduct, case number 3:14-cv-14-RJC. The Court denied and
dismissed the § 2255 motion to vacate, finding that the
claims were meritless and/or procedurally barred. The Fourth
Circuit denied a certificate of appealability and dismissed
Petitioner's appeal on March 1, 2016. United States
v. Derring, 634 Fed.Appx. 941 (4th Cir.
sought, and the Fourth Circuit granted, leave to file a
second or successive § 2255 motion to vacate raising a
Johnson claim. (Doc. No. 1-1). Petitioner filed the
instant § 2255 motion to vacate through appointed
counsel on June 21, 2016, arguing that his enhanced base
offense level pursuant to United States Sentencing Guidelines
§ 2K2.1 is invalid because his prior Ohio conviction for
felonious assault with a firearm is not a “crime of
violence” in light of Johnson.
United States filed a motion to stay this case pending the
United States Supreme Court's resolution of Beckles
v. United States, (Doc. No. 3), which the Court denied
as moot after the Beckles opinion was issued, 137
S.Ct. 886 (2017). (Doc. No. 4). The Court also withdrew its
Order for the Government to file a response and granted
appointed counsel's motion to withdraw. (Id.).
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 the enhanced base offense level pursuant to
Guidelines § 2K2.1(a)(4) is invalid because his prior
Ohio conviction for felonious assault with a firearm is not a
“crime of violence” in light of Johnson.
He claims that his § 2255 motion to ...