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Samuels v. United States

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

October 13, 2017

LOUIS SAMUELS, 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 pursuant to 28 U.S.C. § 2255 seeking relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), (Doc. No. 1), appointed counsel's supporting memorandum, (Doc. No. 3), the Government's Motion to Dismiss, (Doc. No. 7), and counsel's reply, (Doc. No. 8). Also pending is Respondent's motion for an extension of time to file the response, (Doc. No. 6), which is now moot. For the reasons that follow, the motion to vacate will be dismissed with prejudice as procedurally defaulted.

         I. BACKGROUND

         Petitioner was charged in the underlying criminal case with three counts of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(1)(B), 924(e)(1). (3:91-cr-33, Doc. No. 1 at 1). The counts are: Count (1), possession of a silver handgun on or about January 1, 1991; Count (2), possession of a silver handgun on or about January 30, 1991; Count (3), possession of a shotgun on or about February 2, 1991; and Count (4), possession of 12-guage shotgun shells on or about February 13, 1991. (Id., Doc. No. 13 at 277-78).

         The Government presented evidence at trial regarding several witnesses' “traumatic encounters” with Petitioner:

... First, with respect to count one, Necolle Watts testified that on January 1, 1991, Samuels lured her to a motel room at the Cricket Inn in Charlotte, North Carolina. After she arrived at the motel, Samuels held a silver handgun to her head and threatened her several times, repeatedly forcing her to perform oral sex and once forcing her to ingest drugs. Second, Loretta Ardery testified that on January 30, 1991, Samuels called her and asked for a ride from his room at the Econo Lodge in Charlotte. Ardery testified that she drove to the motel and went to Samuels' room to help him carry his suitcases, when Samuels grabbed her, forced her into the room, and attempted to tie her up while repeatedly pointing a silver handgun at her face. Third, Seymore James, Samuels' uncle, testified that on February 2, 1991, Samuels drove to James' house and asked James to keep his shotgun for him. James took the shotgun and kept it in his house until he turned the weapon over to the police on February 14, 1991. Finally, several Charlotte police officers testified that they found shotgun shells in a dresser drawer at Samuels' residence on February 13, 1991. The officers seized the shotgun shells during a search of Samuels' residence, pursuant to a search warrant issued by a magistrate of the state of North Carolina.

United States v. Samuels, 970 F.2d 1312, 1313 (4th Cir. 1992).

         The jury found Petitioner guilty of all counts. (3:91-cr-33, Doc. No. 1 at 3).

         The Presentence Investigation Report (“PSR”) calculated Petitioner's offense level as 34 under the armed career criminal provision of U.S. Sentencing Guidelines § 4B1.4. (3:91-cr-33, Doc. No. 11). The Government filed objections arguing that, although Petitioner qualified for sentencing as an armed career criminal, he should be sentenced instead as a “career offender” pursuant to Guidelines § 4B1.1, which carries a higher sentencing range. (Id.); Samuels, 970 F.2d at 1313. The Court found that the base offense level for Count (1) is 27, plus a two-level increase for restraining a victim, and a four-level increase for displaying a firearm. (Id., Doc. No. 15 at 29). However, the Court found that a two-level increase for obstruction of justice does not apply, so the total offense level for Count (1) is 33, and the total offense level after accounting for the multiple count adjustment, is 34. (Id., Doc. No. 15 at 35); (Id., Doc. No. 11 at ¶¶ 30-31). The criminal history section scores 12 criminal history points and a criminal history category of V. (Id., Doc. No. 11 at ¶¶ 35-38). The PSR lists the predicate offenses for enhanced sentencing as one conviction for felony riot (85CRS96134), and two convictions for possession with intent to sell and deliver cocaine (86CRS3744 and 86CRS3749). (Id., Doc. No. 11 at ¶¶ 40). The Court agreed with the Government that Petitioner is a career offender, so the offense level is 37 and the criminal history category is VI, with a resulting sentencing range of 360 months to life imprisonment. (Id., Doc. No. 15 at 36, 37, 49). The Court sentenced Petitioner to 540 months' imprisonment followed by five years of supervised release. See (Id., Doc. No. 1 at 4); (Id., Doc. No. 15 at 95-96).

         Petitioner argued on direct appeal that the Court erred by: (1) rejecting his motion to sever the four charges; (2) denying his motion to suppress; and (3) improperly enhancing his sentence. The Fourth Circuit affirmed the conviction but reversed the career offender sentence because the underlying felon-in-possession offense is not a “crime of violence” for purposes of the career offender guideline, § 4B1.1. It found, however that Petitioner does qualify as an armed career criminal based on his prior convictions for felony riot and two drug offenses. It remanded for resentencing as an armed career criminal pursuant to Guidelines § 4B1.4, with an offense level of 34 and criminal history category of VI, and an imprisonment range of 262 to 327 months. Samuels, 970 F.2d at 1314.

         On remand, the Court relied on the armed career criminal calculation pursuant to the Fourth Circuit's mandate. However, it found that an upward departure was warranted on two independent grounds. It found by a preponderance of the evidence that: (1) the Government established rapes, sexual assaults, and other acts of violence reflecting a “violent propensity of unbelievable magnitude;” and (2) the criminal history “does not consider the extremely, extraordinarily serious nature of the underlying criminal conduct.” (3:91-cr-33, Doc. No. 18 at 29-30). It therefore increased the offense level 35 and arrived at a guidelines imprisonment range of 292 to 365 months. (Id., Doc. No. 1 at 5-6). The Court sentenced Petitioner at the top of that range to 365 months' imprisonment. (Id., Doc. No. 18 at 33). The Fourth Circuit affirmed. United States v. Samuels, 14 F.3d 598 (4th Cir. 1994).

         Petitioner filed a pro se petition for writ of audita querela on August 3, 2009, arguing that he should be resentenced without the armed career criminal enhancement pursuant to United States Sentencing Guidelines Amendment 709. (3:91-cr-33, Doc. No. 2). The Court dismissed the petition as frivolous on January 14, 2010. The Fourth Circuit affirmed on May 4, 2010, finding that the Court did not err by denying the petition because alternative remedies exist. United States v. Samuels, 376 Fed.Appx. 291 (4th Cir. 2010).

         Petitioner filed his pro se § 2255 motion to vacate on June 20, 2016, arguing that his ACCA sentence is illegal pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 1). Counsel filed a supporting memorandum on Petitioner's behalf arguing that Petitioner's 365-month ACCA sentence exceeds the statutory maximum because Petitioner's prior conviction for North Carolina felony riot is no longer a “violent felony” pursuant to Johnson, that his sentence should be reduced to 120 months, and he should be immediately released. (Doc. No. 3).

         The Government filed a Response and Motion to Dismiss arguing that Petitioner's Johnson claim is procedurally defaulted and meritless. That is, Petitioner failed to raise his sentencing argument on direct appeal and his procedural default of the claim is not excused, the claim is meritless because North Carolina felony riot is a “violent felony” under ACCA's use-of-force clause, and that Petitioner's overall sentence was not affected by his classification as an armed career criminal. (Doc. No. 7). Specifically, the Respondent argues that Petitioner's offense characteristics independently yield a total offense level of 34, resulting in a sentencing range of 262 to 327 months' imprisonment before application of the upward departure, and the removal of the ACCA enhancement ...


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