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Whitfield v. United States

United States District Court, W.D. North Carolina

September 30, 2017

LARRY WHITFIELD, 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 raises a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). The Fourth Circuit Court of Appeals has granted Petitioner authorization to file this, his second motion to vacate, pursuant to 28 U.S.C. §§ 2244(b) and 2255(h). (Doc. No. 1-1).

         I. BACKGROUND

         Petitioner was indicted along with one co-Defendant for:

Count (1), aiding and abetting each other in an attempt to rob a bank by force, violence, and intimidation in violation of 18 U.S.C. § 2113(a) and (2):
Count (2), conspiring to use and carry one or more firearms during and in relation to a crime of violence, that is, bank robbery, as charged in Count (1), and to knowingly and intentionally possess one or more of said firearms in furtherance of such crime of violence, in violation 18 U.S.C. § 924(c) and (o);
Count (3), using and carrying one or more firearms during and in relation to a crime of violence, that is, bank robbery as charged in Count (1), in violation of 18 U.S.C. § 924(c) and (2); and Count
(4), forcing a victim to accompany him to avoid apprehension for the attempted bank robbery, which killed the victim, in violation of 18 U.S.C. § 2113(e).[1]

         (3:09-cr-9-RJC-DCK-1, Doc. No. 1).

         A jury found Petitioner guilty of all four counts.[2] (Id., Doc. No. 52).

         After grouping the offenses, the Presentence Investigation Report (“PSR”) scored the combined adjusted offense level as 43. No Chapter Four enhancements were added so the total offense level was 43. (Id., Doc. No. 52 at ¶¶ 52, 55). Petitioner had zero criminal history points and a criminal history category of I. (Id., Doc. No. 52 at ¶ 59). The resulting guidelines imprisonment range was life plus a mandatory consecutive five-year sentence for Count (3). (Id., Doc. No. 52 at ¶ 76).

         The Court adopted the PSR without change and sentenced Petitioner to life imprisonment for Count (4), 240 months' imprisonment for Counts (1) and (2), all concurrent, and 60 months consecutive for Count (3), followed by a total of five years of supervised release, and restitution. (Id., Doc. No. 83, 84).

         Petitioner argued on direct appeal: (1) the Court erred by declining to suppress his confessions which were the product of coercive interrogations; (2) the jury instructions on forced accompaniment were plainly erroneous; (3) the Court erred in instructing the jury on the death results of an offense not alleged in Count (4) which constructively amended the indictment; and (4) there was insufficient evidence to support a conviction for forced accompaniment.

         The Fourth Circuit affirmed on all grounds except with regards to Count (4), on which it found a constructive amendment had occurred. Accordingly it vacated the conviction and sentence on the uncharged “death results” offense and remanded for entry of judgment on Count (4) for forced accompaniment and for resentencing. United States v. Whitfield, 695 F.3d 288 (4th Cir. 2012).

         On remand, the Probation Office submitted a supplement to the PSR explaining that the Fourth Circuit's partial reversal did not affect the guidelines for Count (4), however, if the Court chose to depart, the guideline range would be 235-293 months. (3:09-cr-9-RJC-DCK-1, Doc. No. 104). The Court adopted the supplement to the PSR and entered an amended judgment reflecting that Count (4) is forceful accompaniment while attempting to avoid apprehension for an attempted bank robbery. (Id., Doc. No. 110). It resentenced Petitioner below the advisory guideline range to 264 months' imprisonment as to Count (4), and 240 months as to Counts (1) and (2), all concurrent, and 60 months, consecutive, as to Count (3), followed by a total of five years of supervised release. (Id., Doc. Nos. 110-11). The Fourth Circuit affirmed, United States v. Whitfield, 548 Fed.Appx. 70 (4th Cir. 2013), and the United States Supreme Court affirmed on January 13, 2015, Whitfield v. United States, 135 S.Ct. 785 (2015).

         Petitioner filed a pro se § 2255 motion to vacate on January 12, 2016, raising claims of guideline calculation errors, case number 3:16-cv-27-RJC. (Id., Doc. No. 125). The Court found the claims meritless and denied relief. (Id., Doc. No. 126). The Fourth Circuit denied a certificate of appealability and dismissed Petitioner's appeal on June 1, 2016. United States v. Whitfield, 651 Fed.Appx. 190 (4th Cir. 2016).

         Petitioner sought, and was granted, permission by the Fourth Circuit to file this second § 2255 motion to vacate ...


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