Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cornette v. United States

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

November 17, 2017

RANDALL CORNETTE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger United States District Judge.

         THIS 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.

         The 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.

         I. BACKGROUND

         On June 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].

         In the 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: Judgment].

         The 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 Judgment].

         The 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].

         On June 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 banc).

         The 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 Johnson.

         II. STANDARD OF REVIEW

         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 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).

         III. DISCUSSION

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.