United States District Court, W.D. North Carolina, Charlotte Division
Cogburn 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), and on the Government's
Motion to Dismiss, (Doc. No. 5). Petitioner seeks relief
pursuant to Johnson v. United States, 135 S.Ct. 2551
pled guilty in the underlying criminal case to possession
with intent to distribute heroin and two counts of possession
of a firearm by a convicted felon. (Crim. Case No.
3:14-cr-91-MOC-1, Doc. No. 16, 25). The presentence
investigation report (“PSR”) scored the two
firearm possession counts with a base offense level of 20
pursuant to United States Sentencing Guideline §
2K2.1(a)(4) because Petitioner committed the offenses
subsequent to sustaining one felony conviction for a
“crime of violence, ” i.e., assault with
a deadly weapon inflicting serious injury. (Id.,
Doc. No. 22 ¶¶ 28, 35, 55). Two levels were added
because the offense involved six firearms, four levels were
added because Petitioner was engaged in the trafficking of
firearms, and three levels were deducted for acceptance of
responsibility, resulting in a total offense level of 23.
(Id. at ¶¶ 36, 37, 44-46). The PSR's
criminal history section scored eleven points and a criminal
history category of V. (Id. at ¶ 63). The
resulting guideline range was 84 to 105 months'
imprisonment, between three years and life on supervised
release, and fines between $10, 000 and $1, 000, 000.
(Id. at ¶ 107, 111, 117).
Court sentenced Petitioner at the bottom of the advisory
guideline range to 84 months' imprisonment for each
count, concurrent, followed by three years of supervised
release. (Id., Doc. No. 25).
direct appeal, Petitioner challenged the Court's
application of the four-level enhancement for firearms
trafficking. The Fourth Circuit found no clear error and
affirmed on December 23, 2015. United States v.
Whitaker, 633 Fed. App. 104 (4th Cir. 2015).
filed the instant § 2255 motion to vacate through
counsel on June 15, 2016, arguing that the enhanced base
offense level pursuant to Guidelines § 2K2.1(a)(4) is
invalid because his prior North Carolina conviction for
assault with a deadly weapon inflicting serious injury is not
a “crime of violence” in light of
Court stayed this action on August 9, 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). The Government has
filed a motion to dismiss the § 2255 motion to vacate
based on Beckles, (Doc. No. 5), and Petitioner's
counsel moved to withdraw from the representation, (Doc. No.
8). The Court granted counsel's motion to withdraw and
issued an Order advising Petitioner of his ability to
withdraw his § 2255 petition without prejudice, or
respond to the Government's motion to dismiss by June 19,
2017. (Doc. No. 10). Petitioner has neither moved to withdraw
the § 2255 motion to vacate nor responded to the
Government's motion to dismiss.
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
North Carolina conviction for assault with a deadly weapon
inflicting serious injury is not a “crime of
violence” in light of Johnson.
announced that the Armed Career Criminal Act's
(“ACCA”) residual clause is void for vagueness, and
that holding is a retroactively applicable right.
Id.; Welch v. United States, 136 S.Ct.
1257, 1265 (2016). However, 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
is inapplicable to Petitioner's guideline challenge
because its void-for-vagueness holding has no effect on the
advisory United States Sentencing Guidelines.
Beckles, 137 S.Ct. at 894. Petitioner's reliance