United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court upon Tarvis Leviticus
Dunham's Motion to Vacate, Set Aside or Correct Sentence
pursuant to 28 U.S.C. § 2255 (Doc. No. 1) and upon the
Government's Motion to Dismiss the Motion to Vacate (Doc.
August 10, 2007, Dunham pled guilty in this Court to Assault
with a Deadly Weapon During a Bank Robbery, in violation of
18 U.S.C. § 2113(d), Larceny of a Motor Vehicle by Force
or Violence, in violation of 18 U.S.C. § 2119, and Use
of a Firearm During and In Relation to a Crime of Violence,
in violation of 18 U.S.C. § 924(c)(1). Plea, Doc. No.
15; Accept. and Entry of Plea, Doc. No. 17. The probation
office prepared a Presentence Investigation Report, which
found that Dunham had at least two prior felony convictions
of either a crime of violence or a controlled substance
offense, including a 2002 federal bank robbery conviction,
and a 2002 North Carolina conviction for indecent liberties
with a child, that qualified him as a career offender under
United States Sentencing Guidelines (“U.S.S.G.”)
§ 41B.2. (§ 2255 Mot. 1-2, Doc. No. 1.)
on the career-offender enhancement, Dunham faced an advisory
Sentencing Guidelines range of 272 to 310 months
imprisonment, which included a mandatory 84 month consecutive
sentence for the 18 U.S.C. § 924(c)(1) conviction. Sent.
Tr. 6-7, Doc. No. 33. The Court imposed a total aggregate
sentence of 300 months. J., Doc. No. 24. Judgment was
affirmed on appeal. United States v. Dunham, 326 F.
App'x 206, 207 (4th Cir. 2009) (unpublished).
filed the instant Motion to Vacate through counsel on June
14, 2016, arguing that his sentence should be vacated and
that he should be resentenced without the career-offender
enhancement because his prior North Carolina conviction for
taking indecent liberties with a child no longer qualifies as
a predicate felony offense under U.S.S.G. § 4B1.2, in
light of the Supreme Court's holding in Johnson v.
United States, 135 S.Ct. 2551 (2015). (Doc. No. 1.) The
Court stayed this action on August 2, 2016, pending the
United States Supreme Court's resolution of Beckles
v. United States. (Aug. 2, 2016 Text-Only Order.).
has now been decided, 137 S.Ct. 886 (2017). The Government
has filed a Motion to Dismiss the § 2255 Motion to
Vacate based on Beckles (Doc. No. 5), and
Dunham's counsel moved to withdraw from representation
(Doc. No. 8). The Court granted counsel's motion to
withdraw and issued an Order advising Dunham of his ability
to withdraw his § 2255 Motion without prejudice, or
respond to the Government's Motion to Dismiss. (Doc. No.
10). Dunham subsequently filed a response to the
Government's Motion, essentially reiterating the argument
that he is entitled to relief under Johnson. (Doc.
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
in the United States District Court, sentencing courts are
directed to examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings”
in order to determine whether a petitioner is entitled to any
relief. If it plainly appears that the petitioner is not
entitled to relief, the court must dismiss the motion.
See id. After conducting its review, the Court finds
that the issue presented in the Motion to Vacate can be
resolved based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529 (4th Cir.
Johnson, made retroactive to cases on collateral
review by Welch v. United States, 136 S.Ct. 1257
(2016), the Supreme Court held that the residual clause of
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), is unconstitutionally vague under the Due
Process Clause of the Fifth Amendment. 135 S.Ct. at 2558. The
ACCA provides for a mandatory minimum sentence of 15 years in
prison for a defendant convicted of being a felon in
possession of a firearm, 18 U.S.C. § 922(g), if the
defendant has at least three prior convictions for serious
drug offenses or violent felonies. See §
felony” is defined in the ACCA as “any crime
punishable by imprisonment for a term exceeding one
year” that “(i) has as an element the use,
attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” § 924(e)(2)(B)
(emphasis added). The italicized closing words of §
924(e)(2)(B) constitute the ACCA's residual clause.
Johnson, 135 S.Ct. at 2556. Pursuant to
Johnson, a defendant who was sentenced under the
ACCA to a mandatory minimum term in prison based on a prior
conviction that satisfies only the residual clause of the
ACCA's “violent felony” definition is
entitled to relief from his sentence. See id. at
was not convicted of being a felon in possession of a
firearm; thus, his sentence was not enhanced under the ACCA.
Dunham contends, however, that the holding in
Johnson applies equally to the career-offender
provisions of the Sentencing Guidelines.
the relevant provision of U.S.S.G. § 4B1.1, a defendant
is a career offender under the Sentencing Guidelines if he
“has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.”
§ 4B1.1(a) (2007). When Dunham was sentenced, the
definition of the term “crime of violence”
contained a force clause, an enumerated clause, and a
residual clause. Under that definition, a federal or state
offense punishable by more than one year of imprisonment
qualified as a crime of violence if the offense “has as
an element the use, attempted use, or threatened use of
physical force against the person of another” (force);
“is burglary of a dwelling, arson, or extortion, ...