United States District Court, W.D. North Carolina
J. CONRAD, 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), 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).
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).
Doc. No. 1).
found Petitioner guilty of all four counts. (Id.,
Doc. No. 52).
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).
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).
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.
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).
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).
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).
sought, and was granted, permission by the Fourth Circuit to
file this second § 2255 motion to vacate ...