United States District Court, W.D. North Carolina, Charlotte Division
Cogburn 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), and on the Government's
Motion to Dismiss (Doc. No. 6). Petitioner seeks relief
pursuant to Johnson v. United States, 135 S.Ct. 2551
October 8, 2008, Brown pled guilty in this Court to
Conspiracy to Possess with Intent to Distribute, and
Distribute, Cocaine Base, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846. Plea, Doc. No. 53; Accept.
and Entry of Plea, Doc. No. 58. The presentence investigation
report (“PSR”) found that Brown had two
qualifying prior convictions that triggered the
career-offender enhancement under United States Sentencing
Guidelines (“U.S.S.G.”) § 4B1.2: a 2001
Minnesota conviction for third degree sale of a controlled
substance, and a 2004 North Carolina conviction for common
law robbery. PSR ¶¶ 30, 37, 38, Doc. No. 85. The
career-offender enhancement increased Brown's adjusted
offense level from 32 to 37. Id. at ¶¶
on the career-offender enhancement, Brown faced a Guidelines
sentencing range of 262 to 327 months in prison. Id.
at ¶ 64. This Court departed downward and imposed a
sentence of 144 months' imprisonment. J., Doc. No. 100.
Brown did not appeal.
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, in light of Johnson, his prior
North Carolina conviction for common law robbery no longer
qualifies as a predicate felony offense under U.S.S.G. §
4B1.2. (Doc. No. 1.) The Court stayed this action on August
29, 2016, pending the United States Supreme Court's
resolution of Beckles v. United States. (Doc. Nos.
has now been resolved, 137 S.Ct. 886 (2017). The Government
has filed a Motion to Dismiss the § 2255 Motion to
Vacate based on Beckles (Doc. No. 6), and
Brown's counsel moved to withdraw from representation
(Doc. No. 9). The Court granted counsel's motion to
withdraw and issued an Order advising Brown of his ability to
withdraw his § 2255 Motion without prejudice, or respond
to the Government's motion to dismiss by June 19, 2017.
(Doc. No. 11). Brown has neither moved to withdraw the §
2255 Motion to Vacate nor responded to the Government's
Motion to Dismiss.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings in the
United States District Courts 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).
announced that the Armed Career Criminal Act's
(“ACCA”) residual clause is void for vagueness, 135
S.Ct. at 2558; the right to raise a claim under
Johnson is retroactive on collateral review,
Welch v. United States, 136 S.Ct. 1257, 1265 (2016).
However, Johnson addresses only the ACCA's
residual clause and “does not call into question
application of the Act to the four enumerated offenses, or to
the remainder of the Act's definition of a violent
felony.” Johnson, 135 S.Ct. at 2563.
the holding in Johnson does not apply to the
advisory sentencing guidelines because “the Guidelines
are not amenable to a vagueness challenge.”
Beckles, 137 S.Ct. at 894. Accordingly,
Johnson is inapplicable to Brown's challenge to
the career-offender guideline, and § 2255 relief is
foreclosed under Beckles. See id.
foregoing reasons, the Court denies Petitioner's §
2255 Motion to Vacate and grants the ...