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Kinard v. United States

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

September 29, 2017

CARLOS EMANUEL KINARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Graham C. Mullen, 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 raises a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015).

         I. BACKGROUND

         Petitioner was indicted along with eight co-defendants in a cocaine-base distribution conspiracy. (Crim. Case No. 3:93-cr-215-GCM, Doc. No. 3). A jury found Petitioner guilty of:

Count (1), conspiracy to possess with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 846;
Count (2), conspiracy to commit violent crimes in aid of racketeering activity in violation of 18 U.S.C. §§ 1959 and 2;
Counts (11) and (12), possession with intent to distribute cocaine base and aiding and abetting the same in violation of 21 U.S.C. § 841(a)(1) and (2);
Counts (13) and (34), using or carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(2);
Counts (28), (31), and (32), murder or kidnapping in aid of racketeering and aiding and abetting the same in violation of 18 U.S.C. §§ 1959(a)(1) and (2);
Counts (29) and (30), assault in aid of racketeering activity and aiding and abetting the same in violation of 18 U.S.C. §§ 1959(a)(3) and (2); and
Count (33), using or carrying a firearm, and aiding and abetting other to do the same, during and in relation to a crime of violence, namely, assault with a dangerous weapon in aid of racketeering activity pursuant to 18 U.S.C. § 1959(a)(3), all in violation of 18 U.S.C. § 924(c) and (2).

(Id., Doc. No. 115).

         After grouping and scoring the various offenses, the Presentence Investigation Report scored the combined adjusted offense level as 47, minus a three-level reduction for acceptance of responsibility pursuant to § 3E1.1, resulting in an offense level of 44. (Id., Doc. No. 252 at ¶¶ 92-103). However, an offense level of more than 43 is to be treated as a total offense level of 43, so the total offense level was 43. (Id., Doc. No. 252 at ¶¶ 104, 106). The criminal history section scored one criminal history point and a criminal history category of I. (Id., Doc. No. 252 at ¶ 111). The resulting guidelines imprisonment range was life for Counts (1), (2), (11), (12), (28), (29), (30), (31), and (33); and the statutorily required penalty for Counts (13), (33), and (34). (Id., Doc. No. 252 at ¶¶ 127, 128).

         The Court sentenced Petitioner to a total of life imprisonment plus fifty years, that is, life for Counts (1), (2), (11), (12), (28), (31), and (32), and twenty years' imprisonment for Counts (29) and (30), concurrent; and consecutive terms of imprisonment of ten years for Count (13), and twenty years for Counts (33) and (34). (Id., Doc. No. 136).

         The Fourth Circuit affirmed on direct appeal. United States v. Padgett, 78 F.3d 580 (4th Cir. 1996). The United States Supreme Court denied certiorari on October 7, 1996. Kinard v. United States, 117 S.Ct. 124 (1996).

         In September 2009, the Court declined to grant Petitioner a sentencing reduction pursuant to Amendment 706 to the United States Sentencing Guidelines addressing crack cocaine because Petitioner's guidelines range was ...


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