United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Charles Jenkins's
pro se Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. § 2255. (Doc. No. 1.)
March 3, 2011, Jenkins pled guilty in this Court to one count
of possession of a firearm by a felon, in violation of 18
U.S.C. §§ 922(g) and 924(e), and one count of
possession with intent to distribute a mixture and substance
containing a detectable amount of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and 851. Accept. and
Entry of Plea, Doc. No. 13. His case was referred to the U.S.
Probation Office for preparation of a presentence
investigation report (“PSR”). The probation
officer concluded that Jenkins qualified for an enhanced
sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), based upon
seven (7) prior felony convictions in North Carolina. PSR
¶ 19, Doc. No. 23.
Court sentenced Jenkins as an armed career criminal to
concurrent 180 month prison terms. J., Doc. No. 25; Stmt. of
Reasons, Doc. No. 26. Judgment was entered on February 14,
2012. Id. Jenkins did not file a direct appeal.
22, 2016, Petitioner filed a motion under 28 U.S.C. §
2244 in the Fourth Circuit Court of Appeals seeking
authorization to file a § 2255 motion in federal
district court. In re: Charles Jenkins, No. 16-9841
(4th Cir.), ECF No 2. Petitioner has never filed an initial
§ 2255 motion and, therefore, did not need the appellate
court's permission to do so. Accordingly, the Fourth
Circuit converted Petitioner's § 2244 action to a
motion pursuant to § 2255 and transferred it to this
Court. (Doc. No. 2.).
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.
sole claim is that his judgment should be vacated and that he
should be resentenced without the armed career criminal
designation, in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), a defendant convicted of being a felon
in possession of a firearm under 18 U.S.C. § 922(g)
faces a sentence of no less than 15 years nor more than life
imprisonment if he has three qualifying prior convictions for
either a “violent felony” or a “serious
drug offense, ” and those convictions are
“committed on occasions different from one
another.” § 924(e)(1). The ACCA defines a
“violent felony” 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
§ 924(e)(2)(B)(i)(ii) (emphasis added). The italicized
closing words of § 924(e)(2)(B)(ii) constitute the
ACCA's residual clause. See Johnson, 135 S.Ct.
Johnson, the Court held that the ACCA's residual
clause is unconstitutionally vague. Id. at 2558.
Thus, a defendant who was sentenced to a mandatory minimum
term based on a prior conviction that satisfies only the
residual clause of the “violent felony”
definition is entitled to relief from his sentence. In
Welch v. United States, the Supreme Court held ...