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Massey v. United States

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

October 16, 2017



          Max O. Cogburn, 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), and the Respondent's Motion to Dismiss, (Doc. No. 7).

         I. BACKGROUND

         Petitioner was indicted for: Count (1), possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); Count (2), possession with intent to distribute a detectable amount of marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and Count (3), using and carrying a firearm during and in relation to, and in furtherance of a drug trafficking crime, as set forth in Count (2) of the indictment, in violation of 18 U.S.C. § 924(c)(1)(A); 21 U.S.C. § 841(a)(1). (Crim. Case No. 3:13-cr-224, Doc. No. 1).

         Petitioner pled guilty to Counts (1) and (2) pursuant to a written plea agreement. (Id., Doc. No. 9). The agreement, which Petitioner signed, states that the maximum penalties are up to 10 years' imprisonment for Count (1), up to five years' imprisonment for Count (2), and no more than three years of supervised release. (Id., Doc. No. 9 at 2). However, if Petitioner has three previous convictions for a violent felony or serious drug offense, the minimum mandatory sentence for Count (1) is 15 years, and up to a maximum of life imprisonment pursuant to 18 U.S.C. § 924(e)(1). (Id.). The agreement states that the sentence has not been determined, that the Court will consider the advisory guidelines, the Court is not bound by the parties' recommendations, and Petitioner cannot withdraw the plea as a result of the sentence. (Id.).

         The parties agreed to jointly recommend findings that the appropriate sentence is within the guidelines, the offense level for Count (1) is 30, [1] and that Petitioner “is a Career Offender for purposes of Count Two.” (Id., Doc. No. 9 at 3). The parties agreed to recommend a sentence at the top of the guidelines range. Petitioner further agreed to admit violations of supervised release in cases 3:03-cr-29-01 and 3:11-cr-124-01, for which the parties would recommend revocation and sentencing at the top of the guidelines ranges, with the sentences running consecutively to the instant criminal case.

         The agreement contains the following waiver:

The defendant, in exchange for the concessions made by the United States in this plea agreement, waives all such rights [pursuant to 18 U.S.C. § 3742, 28 U.S.C. § 2255, and similar authorities] to contest the conviction except for: (1) claims of ineffective assistance of counsel or (2) prosecutorial misconduct. The defendant also knowingly and expressly waives all rights conferred by 18 U.S.C. § 3742 or otherwise to appeal whatever sentence is imposed with the two exceptions set forth above. The defendant agrees that the United States preserves all its rights and duties as set forth in 18 U.S.C. § 3742(b).

(Id., Doc. No. 9 at 6).

         Petitioner stated under oath before Magistrate Judge Keesler at a Rule 11 hearing that he understood the charges and maximum penalties, that the sentencing guidelines would apply and that the sentence had not yet been determined, and that he would not be allowed withdraw the plea if he received a sentence more severe than he expected. (Id., Doc. No. 31 at 4-7). He acknowledged the rights he was waiving by pleading guilty, including right to a trial with assistance of counsel, presumption of innocence, and reasonable doubt burden on the government. (Id., Doc. No. 31 at 8). He reviewed the charges with counsel, understood them, and is guilty of those crimes. (Id., Doc. No. 31 at 9). He reviewed the plea agreement with counsel, understood and agreed with its terms including the appellate and post-conviction waiver. ((Id., Doc. No. 31 at 16-17). His plea was not the result of threats, intimidation, or force. (Id., Doc. No. 31 at 17). He had enough time to discuss possible defenses with counsel and was satisfied with counsel's services. (Id., Doc. No. 31 at 17). He understood all parts of this proceeding, had no questions or statements, and still wished to plead guilty. (Id., Doc. No. 31 at 18). Counsel confirmed that he reviewed all features of the case and the terms of the plea agreement with Petitioner and was satisfied that Petitioner understood and knew what he was doing. (Id., Doc. No. 31 at 18).

         The Presentence Investigation Report (“PSR”) calculated the base offense level for Count (1) as 24 because the offense is a violation of 18 U.S.C. § 922(g)(1) and Petitioner committed this offense after sustaining at least two felony convictions for a crime of violence, to wit, robbery affecting interstate commerce and aiding and abetting the same (3:03CR00029); robbery affecting interstate commerce (1:03CR146-01); and brandishing a firearm during and in relation to a crime of violence and aiding and abetting the same (3:03CR00019), pursuant to 2K2.1. (Id., Doc. No. 22 at ¶ 19). Four levels were added because Petitioner possessed a firearm in conjunction with another felony offense, that is, possession with intent to distribute marijuana pursuant to 2K2.1(b)(6). (Id., Doc. No. 22 at ¶ 20). The PSR calculated the base offense level for Count (2) as six because the offense violated 21 U.S.C. § 841(a)(1) pursuant to 2D1.1. (Id., Doc. No. 22 at ¶ 25). Two levels were added because the offense involved possession of a dangerous weapon, a firearm pursuant to 2D1.1(b)(1). (Id., Doc. No. 22 at ¶ 26). The greater of the two adjusted offense levels was that for Count (1) of 28. (Id., Doc. No. 22 at ¶ 31). The PSR applied a Chapter Four career offender enhancement because Petitioner was at least 18 years old at the time of the instant offense, the offense is a felony crime of violence or controlled substance offense and Petitioner has at least two prior felony convictions for a crime of violence, i.e., carjacking (W.D. N.C. Case No. 3:03cr-29), and Hobbs Act robbery (M.D. N.C. Case No. 1:03-cr-146-01). See (Id., Doc. No. 22 at ¶¶ 41, 42). The offense level for a career offender is 17, however, the career offender offense level is lower than that otherwise applicable so the offense level is 28 pursuant to 4B1.1(a) and (b). (Id., Doc. No. 22 at ¶ 32). Three levels were deducted for acceptance of responsibility resulting in a total offense level of 25. (Id., Doc. No. 22 at ¶¶ 33, 34, 35).

         The PSR's criminal history section scored a criminal history subtotal of six. (Id., Doc. No. 22 at ¶ 43). Two points were added because Petitioner committed the instant offense while under a criminal justice sentence resulting in a total criminal history score of eight with a criminal history category of IV. (Id., Doc. No. 22 at ¶¶ 45). However, a career offender's criminal history is VI pursuant to § 4B1.1(b). (Id., Doc. No. 22 at ¶ 46).

         The resulting guidelines imprisonment range was 110-120 months for Count (1) and 60 months for Count (2). (Id., Doc. No. 22 at ¶ 72).

         Petitioner confirmed at the sentencing hearing that he understood Magistrate Judge Keesler's questions at the Rule 11 hearing, that the plea was knowing and voluntary, that he understood the charges, potential penalties, and consequences of his plea, and was pleading guilty because he is guilty of those offenses. (Id., Doc. No. 32 at 5-7). Petitioner read the PSR, went over it with his attorneys, and understood it. (Id., Doc. No. 32 at 7).

         Counsel objected to the four-point enhancement pursuant to 4K1.1(b)(6)(B) for the marijuana offense in Count (1), and the gun enhancement as a career offender in Count (2). (Id., Doc. No. 32 at 8). The Court overruled the objection to the four-point enhancement and found that the career offender enhancement applies under a clear reading of the law. (Id., Doc. No. 32 at 11, 20).

         The Court sentenced Petitioner at the high end of the guideline range to 120 months' imprisonment for Count (1) and 17 months' imprisonment for Count (2), concurrent, [2] followed by two years of supervised release. (Id., Doc. No. 32 at 37-38); (Id., Doc. No. 24).

         Petitioner argued on direct appeal: (1) the Court erred by sentencing Petitioner as a career offender with a criminal history category of VI; and (2) Petitioner is entitled to appeal without regard to the appellate waiver provision of the plea agreement because he could not have reasonably anticipated the Court's misapplication of the law. The Fourth Circuit Court of Appeal dismissed Petitioner's direct appeal, finding that he knowingly and voluntarily waived his right to appeal, and that the issue that he sought to raise falls squarely within the scope of his appellate waiver. (Id., Doc. No. 35, 36). The United States Supreme Court denied certiorari on October 13, 2015. Massey v. United States, 136 S.Ct. 350 (2015).

         Petitioner filed a pro se § 2255 motion to vacate on May 9, 2016, which he argues is timely under 28 U.S.C. § 2255(f)(3) and (4) pursuant to Johnson. (Doc. No. 1). Liberally construing his pro se pleading, [3] he argues (renumbered): (1) he lacks the predicate convictions to support career offender sentencing; and (2) the appellate waiver is involuntary and invalid because Petitioner received an excessive career offender sentence that exceeds the statutory maximum.

         Appointed counsel filed a supplemental § 2255 motion to vacate on June 15, 2016, arguing with regards to Claim (1) that Petitioner does not qualify for enhanced sentencing under 2K2.1 and 4B1.2(a)(2) pursuant to Johnson because Hobbs Act robbery no longer qualifies as a crime of violence. (Doc. No. 3).

         The case was stayed on September 20, 2016, pending the United States Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886, 890 (2017), which was issued on March 6, 2017, and held that the advisory guidelines are not subject to vagueness challenges. See (Doc. Nos. 5, 6).

         The Respondent filed a Motion to Dismiss on May 4, 2017, arguing that Petitioner's Johnson claim is foreclosed by Beckles. (Doc. No. 7). Appointed counsel's motion to withdraw was granted on May 17, 2017. (Doc. Nos. 10, 12).

         On June 9, 2017, Petitioner filed a pro se “Reply Motion in Response to the Respondent's Motion Seeking the Denial of His § 2255 Motion/and his Request to Take Judicial Notice Pursuant to Rule 201(d) of the Federal Rules of Evidence.” (Doc. No. 13). In it, he argues with regards to Claim (1) that: (a) he does not qualify as a career offender because his predicate conviction is based on a divisible statute that is broader than the generic offense; and (b) the Court miscalculated Petitioner's career offender criminal history by misapplying 4B1.1(b). He argues with regards to Claim (2) that his appellate waiver was involuntary because he did not realize the Court would impose an unreasonable and illegal sentence. ...

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