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Dunham v. United States

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

January 2, 2018

TARVIS LEVITICUS DUNHAM, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS 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. No. 5).

         I. BACKGROUND

         On 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.[1] 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.)

         Based 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 United States v. Dunham, 326 F. App'x 206, 207 (4th Cir. 2009) (unpublished).

         Dunham 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.).

         Beckles 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. No. 11.)

         II. STANDARD OF REVIEW

         Pursuant 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. 1970).

         III. DISCUSSION

         In 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 § 924(e)(1).

         “Violent 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 2558.

         Dunham 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.

         Under 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, ...


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