United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court upon Rico McHam'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.
October 22, 2008, McHam pled guilty in this Court to one
count of conspiracy to possess with intent to distribute, and
distribute cocaine base, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A), and to one count of
distributing and possessing with intent to distribute cocaine
and aiding and abetting the same, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(C), and 18 U.S.C. §2.
Accept. and Entry of Plea, Doc. No. 23. The probation
office prepared a Presentence Investigation Report
(“PSR”), which found that McHam had at least two
prior felony convictions of either a crime of violence or a
controlled substance offense, including a 2002 conviction in
North Carolina for common law robbery and a 2006 conviction
in North Carolina for possession with intent to sell and
deliver marijuana and selling marijuana (as a single
predicate), that qualified him as a career offender under
United States Sentencing Guidelines (“U.S.S.G.”)
§ 41B.2. PSR ¶¶ 24, 36, 40, Doc. No. 33.
on the career-offender enhancement, McHam faced an advisory
Sentencing Guidelines range of 262 to 327 months
imprisonment. PSR ¶ 93. The Court imposed concurrent
sentences of 140 months each. J., Doc. No. 37; Stmt. of
Reasons, Doc. No. 38. McHam did not file a direct appeal.
16, 2016, McHam filed the instant Motion to Vacate through
counsel, 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
common law robbery 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 November 21, 2016, pending the United States Supreme
Court's resolution of Beckles v. United States.
(Nov. 21, 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
McHam's counsel moved to withdraw from representation
(Doc. No. 8). The Court granted counsel's motion to
withdraw and issued an Order advising McHam of his ability to
withdraw his § 2255 Motion without prejudice, or respond
to the Government's Motion to Dismiss by June 20, 2017.
(Doc. No. 10). McHam has neither moved to withdraw the §
2255 Motion to Vacate nor responded to the Government's
Motion to Dismiss.
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 §
was not convicted of being a felon in possession of a
firearm; thus, his sentence was not enhanced under the ACCA.
Moreover, the holding in Johnson does not extend to
the Sentencing Guidelines. See Beckles, 137 S.Ct. at
892. In Beckles, the Supreme Court held that the
advisory Guidelines, including the career offender residual
clause, are not subject to a vagueness challenge under the
Due Process Clause. Id. Thus, McHam is not entitled
to relief under Johnson. Id.
does not afford McHam relief from his sentence. Accordingly,
the Court shall grant the Government's Motion to Dismiss