United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN, 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 raises a claim
pursuant to Johnson v. United States, 135 S.Ct. 2551
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.
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. §
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
Doc. No. 115).
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).
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).
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).
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 ...