United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon Petitioner Willie
Lee Harris's pro se Motion to Vacate, Set Aside or
Correct Sentence, 28 U.S.C. § 2255. (Doc. No. 1) Also
before the Court is the Government's Motion to Dismiss
the Motion to Vacate. (Doc. No. 6.)
1994, a jury convicted Harris of conspiracy to possess with
intent to distribute and distribution of cocaine in violation
of 21 U.S.C. § 846. Verdict, Doc. No. 159. A probation
officer prepared a presentence investigation report
(“PSR”), finding that Harris had a base offense
level of 38 because his offense involved more than 150, but
less than 500, kilograms of cocaine and that he was subject
to a four-level increase for his role in the offense, as well
as a two-level increase for obstruction of justice, bringing
his adjusted offense level to 44. PSR ¶¶ 16, 19-20,
Doc. No. 394.
probation officer also found Harris had at least two prior
felony convictions of either a crime of violence or a
controlled substance offense, including Florida state
convictions for attempted sexual battery and trafficking in
cocaine, that qualified him for a sentence enhancement as a
career offender under United States Sentencing Guidelines
(“U.S.S.G.”) § 41B.2. PSR ¶ 24.
However, because the offense level based on drug quantity was
greater than the level for a career offender (37), the
probation officer found that the former offense level
the probation officer found that Harris had a total of seven
criminal history points, which established a criminal history
category of IV, but that as a career offender his criminal
history category was VI. PSR ¶ 34. The probation officer
determined that the guideline range for imprisonment was
life. PSR ¶ 47.
sentencing, this Court sustained Harris's objection to
the enhancement for obstruction of justice and found that he
should be sentenced at offense level 42 and criminal history
category VI. Sent. Tr. 25, Doc. No. 403. The resulting
guidelines range was 360 months to life imprisonment, and the
Court sentenced Harris to life. J., Doc. No. 191. Harris
appealed, and the Fourth Circuit affirmed his conviction and
sentence, holding that the evidence supported his
responsibility for over 150 kilograms of cocaine. United
States v. Walker, 66 F.3d 318, 1995 WL 551361, at *7
(4th Cir. 1995) (unpublished), cert. denied, 516
U.S. 1138 (1996).
then, Harris has filed a variety of motions seeking
post-conviction relief, see Doc. Nos. 331, 392, 399,
which this Court has dismissed or denied, see Doc.
Nos. 332, 395, 400. In June 2016, Harris sought authorization
from the Fourth Circuit to file a successive § 2255
motion under Johnson v. United States, 135 S.Ct.
2551 (2015). See Doc. No. 404. The Fourth Circuit
granted authorization and transferred Harris's motion to
this Court. See id.; In re Harris, No.
16-9806 (4th Cir. July 25, 2016).
sole claim is that his sentence should be vacated and he
should be resentenced without a career-offender enhancement
because his prior Florida conviction for attempted sexual
battery 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. (Doc. No. 1.) The
Government has filed a Motion to Dismiss, arguing that
Harris's § 2255 Motion is an unauthorized,
successive motion to vacate and/or procedurally barred. The
Government also contends that Harris's Motion is without
merit. (Doc. No. 6.)
January 18, 2017, the Court entered an Order in accordance
with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), notifying Harris of his right to respond to the
Government's Motion to Dismiss and providing him 30 days
to do so. The Court also notified Harris that failure to
reply could result in dismissal of his § 2255 Motion to
Vacate without further notice. (Doc. No. 7.) Harris has not
responded to the Government's Motion to Dismiss.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings 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 arguments presented can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
Motion to Vacate fails to state a claim for relief under
Johnson. For the sake of judicial economy, the Court
will not also address the Government's arguments that the
Motion is an ...