United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on the Petitioner's
Motion to Vacate, pursuant to 28 U.S.C. § 2255 [Doc. 1]
and the Government's Motion to Dismiss and Response to
Petitioner's Motion to Vacate [Doc. 7]. The Petitioner is
represented by Joshua Carpenter of the Federal Defenders of
Western North Carolina.
Petitioner challenges his sentence under 28 U.S.C. §
2255, arguing that he was improperly sentenced as an armed
career criminal because he does not have three prior
convictions for violent felonies or serious drug offenses
within the meaning of the Armed Career Criminal Act
(“ACCA”), see 18 U.S.C. § 924(e). For the
reasons that follow, the motion to vacate is denied.
3, 2008, the Petitioner was charged in a Bill of Indictment
with one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). [Crim.
Case No. 1:08-cr-00056 (“CR”), Doc. 1:
Indictment]. The Petitioner subsequently pleaded guilty to
this charge pursuant to a written plea agreement with the
Government. [CR Doc. 12: Plea Agreement].
Petitioner's presentence report (“PSR”), the
probation officer identified the following predicate
convictions under the ACCA: (1) three 1976 convictions in
Georgia for burglary, which were consolidated for sentencing;
(2) a 1979 conviction in North Carolina for breaking or
entering; (3) two 1986 convictions in North Carolina for
felony possession with intent to manufacture, sell, or
deliver cocaine, and felony sell or deliver cocaine, which
were consolidated for sentencing; and (4) a 1989 conviction
in North Carolina for breaking or entering. [CR Doc. 16 at
¶¶ 25, 36, 37, 41, 42]. In part based on a
cross-reference to the attempted-murder guideline, U.S.S.G.
§ 2A2.1, the probation officer calculated a total
offense level of 32 and a criminal history category of VI,
yielding an applicable Sentencing Guidelines range of between
210 and 262 months' imprisonment. [Id. at
¶¶ 19, 27, 53, 91]. The presiding judge, the
Honorable Lacy H. Thornburg, adopted the PSR and sentenced
Petitioner to 220 months' imprisonment. [CR Doc. 18:
Petitioner appealed to the Fourth Circuit Court of Appeals.
While this matter was on appeal, Judge Thornburg retired and
this matter was reassigned to the undersigned. In September
2010, the Fourth Circuit vacated the judgment and remanded
for resentencing on the grounds that Judge Thornburg had
failed to provide adequate reasons for the chosen sentence.
United States v. Cornette, 396 F. App'x 8, 9
(4th Cir. 2010). On remand, this Court imposed the same
220-month term of imprisonment. [CR Doc. 42: Amended
Petitioner did not appeal the amended judgment, but on April
18, 2011, he filed a motion to vacate under 28 U.S.C. §
2255, raising a number of ineffective assistance of counsel
claims. [Civil Case No. 1:11-cv-00092, Doc. 1]. This Court
denied and dismissed the Petitioner's motion to vacate on
August 20, 2014. [Id., Doc. 9].
6, 2016, the Fourth Circuit granted authority for the
Petitioner to file a successive motion to vacate to raise a
claim under Johnson v. United States, 135 S.Ct. 2551
(2015). [CR Doc. 52-2]. That same day, the Petitioner filed
the present motion to vacate, arguing that he was improperly
sentenced as an armed career criminal. Specifically, the
Petitioner contends that his prior 1976 conviction for
burglary in Georgia no longer qualifies as a “crime of
violence” in light of Johnson. He further
contends that his 1986 convictions in North Carolina for
possession with intent to manufacture, sell, or deliver
cocaine and felony sell or deliver cocaine are not
“serious drug offenses” because they are no
longer considered felonies under United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en
Government filed a motion to dismiss on September 16, 2016.
[Doc. 7]. In its motion, the Government contends that
Petitioner waived in his plea agreement the right to bring
his Johnson claim and that his claim fails on the
merits because he still has three or more qualifying
predicate convictions under the ACCA, even after
STANDARD OF REVIEW
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 Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
ACCA provides for a mandatory minimum term of fifteen
years' imprisonment for any defendant convicted of 18
U.S.C. § 922(g) and who has three prior convictions for
either a “violent felony” or ...