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Derring v. United States

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

September 18, 2017

FRAZIER DERRING, 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 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 (2015).

         I. BACKGROUND

         A jury 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).

         The 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).

         The 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. 50).

         Petitioner 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).

         On 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. 2016).

         Petitioner 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.

         The 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.).

         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 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 ยง 2255 motion to ...


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