United States District Court, W.D. North Carolina, Charlotte Division
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 Petitioner seeks
relief pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015).
pled guilty to a single count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g).
(Crim. Case No. 3:12-cr-366, Doc. Nos. 1, 7). The presentence
investigation report (“PSR”) scored the base
offense level as 24 because Petitioner had at least two prior
felony convictions for a crime of violence, i.e.,
North Carolina conspiracy to commit robbery with a dangerous
weapon (06CRS234549), and common law robbery (05CRS202579).
(Id., Doc. No. 13 at ¶ 13); see
U.S.S.G. § 2K2.1(a)(2) (2012). No Chapter Four
enhancements were added. (Crim. Case No. 3:12-cr-366 Doc. No.
13 at ¶ 19). Three levels were deducted for acceptance
of responsibility, resulting in a total offense level of 21.
(Id., Doc. No. 13 at 20-22). The PSR scored seven
criminal history points and a criminal history category of
IV. (Id., Doc. No. 13 at 35-36). The resulting
guidelines imprisonment range was 57 to 71 months.
(Id., Doc. No. 13 at 56).
Court sentenced Petitioner within the advisory guideline
range to 64 months' imprisonment followed by three years
of supervised release. (Id., Doc. No. 15).
Petitioner did not appeal.
15, 2016, Petitioner filed the instant § 2255 motion to
vacate through counsel, arguing that his prior convictions no
longer qualify as “crimes of violence” pursuant
to Johnson and thus cannot support an enhanced
offense level pursuant to Section 2K2.1. (Doc. No. 1). The
Court ordered the Government to respond, but instead, it
filed an unopposed motion to stay this action pending the
United States Supreme Court's decision in Beckles v.
United States. On March 6, 2017, the Supreme Court held
that the advisory guidelines are not subject to vagueness
challenges. Beckles v. United States, 137 S.Ct. 886
(2017). The Federal Public Defender filed a motion to
withdraw from this case, which was granted. (Doc. Nos. 4, 5).
The Court provided Petitioner the opportunity to voluntarily
dismiss his § 2255 motion to vacate in light of
Beckles and warned him of the consequences of
proceeding with this action. (Doc. No. 5). The time for
voluntarily dismissing this action has now expired.
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing
Section 2255 Proceedings provides that courts are to promptly
examine motions to vacate, along with “any attached
exhibits and the record of prior proceedings . . .” in
order to determine whether the petitioner is entitled to any
relief on the claims set forth therein. After examining the
record in this matter, the Court finds that the argument
presented by the Petitioner can be resolved based on the
record and governing case law. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
argues that the enhanced base offense level pursuant to
Guidelines § 2K2.1(a) does not apply to him because his
prior North Carolina convictions for common law robbery and
conspiracy to commit robbery with a dangerous weapon are not
“crimes of violence” in light of Johnson v.
United States, 135 S.Ct. 2551 (2015).
announced that the Armed Career Criminal Act's
(“ACCA”) residual clause is void for vagueness, and
that holding recognizes a retroactively applicable right.
See Welch v. United States, 136 S.Ct. 1257, 1265
(2016). However, Johnson addresses only ACCA's
residual clause and “does not call into question
application of the Act to the four enumerated offense, or to
the remainder of the Act's definition of a violent
felony.” Johnson, 135 S.Ct. at 2563. Nor does
Johnson apply to the advisory sentencing guidelines
because “the Guidelines are not amenable to a vagueness
challenge.” Beckles v. United States, 137
S.Ct. 886, 894 (2017).
is inapplicable to Petitioner's guideline challenge
because its void-for-vagueness holding has no effect on the
advisory United States Sentencing Guidelines.
Petitioner's reliance on Johnson misplaced and
§ 2255 relief is foreclosed by Beckles.
foregoing reasons, the Court denies Petitioner's §
2255 motion to vacate. IT ...