United States District Court, W.D. North Carolina, Charlotte Division
Cogburn, 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), and the Respondent's Motion to Dismiss, (Doc. No.
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.
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.).
parties agreed to jointly recommend findings that the
appropriate sentence is within the guidelines, the offense
level for Count (1) is 30,  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.
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).
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).
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).
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).
resulting guidelines imprisonment range was 110-120 months
for Count (1) and 60 months for Count (2). (Id.,
Doc. No. 22 at ¶ 72).
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).
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).
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,
followed by two years of supervised release. (Id.,
Doc. No. 32 at 37-38); (Id., Doc. No. 24).
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).
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,
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
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).
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,
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.
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. ...