United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
April 17, 2012, Zachary William Sanders ("Sanders")
moved under 18U.S.C. § 3582 to reduce his sentence [D.E.
55]. On August 13, 2012, Sanders moved under 28 U.S.C. §
2255 to vacate, set aside, or correct his 276-month sentence
[D.E. 57]. On June 21, 2013, the government moved to dismiss
Sanders's section 2255 motion for failure to state a
claim upon which relief can be granted [D.E. 64] and filed a
memorandum in support [D.E. 65]. On September 13, 2013, the
court granted the government's motion, dismissed
Sanders's section 2255 motion, and denied Sanders's
motion under 18 U.S.C. § 3582 [D.E. 68]. Sanders
appealed. On February 9, 2015, the United States Court of
Appeals for the Fourth Circuit dismissed in part and affirmed
in part [D.E. 76]. On May 16, 2016, Sanders filed a second
pro se section 2255 motion to vacate [D.E. 79]. On June 20,
2016, after receiving authorization from the Fourth Circuit
to pursue a claim under Johnson v. United States,
135 S.Ct. 2551 (2015) [D.E. 82], Sanders (through counsel)
filed a third section 2255 motion [D.E. 84]. On October 19,
2016, the court stayed the action pending the Supreme t
Court's decision in Beckles v. United States
[D.E. 87]. On May 15, 2017, Sanders filed a pro se
supplemental motion seeking a sentence reduction under 18
U.S.C. § 3582 [D.E. 90]. On June 14, 2017, after the
Supreme Court decided Beckles v. United States, 137
S.Ct. 886 (2017), the government moved to lift the stay and
dismiss Sanders's 22SS motions [D.E. 91], and filed a
supporting memorandum [D.E. 92]. As explained below, the
court grants the government's motion to lift the stay,
dismisses Sanders's section 22SS motions, and denies his
section 3582 motion.
February 20, 2007, Sanders pleaded guilty without a plea
agreement to (1) unlawful possession of a firearm by a felon
in violation of 18 U.S.C. §§ 922(g)(1) and 924
(count one), (2) possession with intent to distribute cocaine
base (crack) in violation of21 U.S.C. § 841(a)(1) (count
two), and (3) possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. §
924(c) (count three). See [D.E. 68] 1. On January 15, 2008,
the court sentenced Sanders to 120 months' imprisonment
on count one, 216 months' imprisonment on count two
(concurrent to count one), and 60 months' imprisonment on
count three (consecutive to counts two and three).
See Id. at 2. Thus, Sanders's total
sentence was 276 months' imprisonment See Id.
Sanders appealed. On December 18, 2008, the United States
Court of Appeals for the Fourth Circuit affirmed
Sanders's conviction and sentence. See United States
v. Sanders, No. 08-4137, 2008 WL 5599626 (4th Cir. Dec.
19, 2008) (per curiam) (unpublished).
Sanders's section 2255 motions, Sanders makes three
claims: (1) the definition of "crime of violence"
in the career offender Guideline is unconstitutionally vague;
(2) ineffective assistance of trial and appellate counsel for
failing to attack the career offender Guideline as
unconstitutionally vague; and, (3) the court improperly
calculated Sanders's advisory guideline range under
U.S.S.G. § 2K2.1(a)(1) because Sanders did not have two
predicate crimes of violence under the Guidelines in light of
Johnson v. United States, 135 S.Ct. 2551 (2015). See
[D.E. 79, 84]. The government moved to dismiss the motions
for failure to state a claim upon which relief can be
granted. See [D.E. 91, 92].
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a complaint's legal and
factual sufficiency. See Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 562-63, 570 (2007); Coleman v Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
affd. 566 U.S. 30 (2012); Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008);
accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(per curiam). In considering a motion to dismiss, a court
need not accept a complaint's legal conclusions.
See, e.g., Iqbal, 556 U.S. at 678.
Similarly, a court "need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see
Iqbal, 556 U.S. at 677-79. Moreover, a court may
take judicial notice of public records without converting a
motion to dismiss into a motion for summary judgment.
See, e.g., Fed.R.Evid. 201; Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007); Philips v. Pitt Cty. Mem'l Hosp.,
572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section
2255 motion, the court is not limited to the motion itself.
The court may consider "the files and records of the
case." 28 U.S.C. § 2255(b); see United States
v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). Likewise, a
court may rely on its own familiarity with the case. See.
e.g., Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977);
United States v. Dyess, 730 F.3d 354, 359-60 (4th
may not use section 2255 to challenge his career-offender
status under the Guidelines or the calculation of his
advisory guideline range under U.S.S.G. § 2K2.1(a)(1).
See United States v. Foote, 784 F.3d 931, 939 (4th
Cir. 2015) (quotation omitted); United States v.
Pregent 190 F.3d 279, 283-84 (4th Cir. 1999); see also
Whiteside v. United States, 775 F.3d 180, 183-87
(4th Cir. 2014) (en banc); United States v.
Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999).
Thus, these claims fail.
Sanders cannot use Johnson retroactively in this
section 2255 action to challenge the career-offender
Guideline as vague, to challenge his career-offender status
under the Guidelines, or to challenge this court's
analysis of U.S.S.G. § 2K2.1(a)(1) in calculating his
advisory guideline range. See, e.g., Beckles. 137
S.Ct. at 895-97; United States v. Mack, 855 F.3d
581, 584-85 (4th Cir. 2017); United States v. Lee.
855 F.3d 244, 246-47 (4th Cir. 2017). Thus, these claims
Sanders's ineffective assistance of counsel claim,
"[t]he Sixth Amendment entitles criminal defendants to
the effective assistance of counsel-that is, representation
that does not fall below an objective standard of
reasonableness in light of prevailing professional
norms." Bobby v. Van Hook, 558 U.S. 4, 7 (2009)
(per curiam) (quotations omitted). The Sixth Amendment right
to counsel extends to all critical stages of a criminal
proceeding, including plea negotiations, trial, sentencing,
and appeal. See, e.g.. Missouri v.
Frye, 566 U.S. 134, 140-41 (2012); Lafler v.
Cooper, 566 U.S. 156, 165 (2012); Glover v. United
States, 531 U.S. 198, 203-04 (2001). "[S]entencing
is a critical stage of trial at which a defendant is entitled
to effective assistance of counsel, and a sentence imposed
without effective assistance must be vacated and reimposed to
permit facts in mitigation of punishment to be fully and
freely developed." United States v.
Breckenridge, 93 F.3d 132, 135 (4th Cir. 1996); see
Glover, 531 U.S. at 203-04.
state a claim of ineffective assistance of counsel in
violation of the Sixth Amendment, Sanders must show that his
attorney's performance fell below an objective standard
of reasonableness and that he suffered prejudice as a result
See Strickland v. Washington, 466 U.S. 668, 687-91
(1984). When determining whether counsel's representation
was objectively unreasonable, a court must be "highly
deferential" to counsel's performance and must
attempt to "eliminate the distorting effects of
hindsight." Id. at 689. Therefore, the
"court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance." Id. A
party can establish prejudice by showing that there is a
"reasonable probability" that, but for the
deficiency, "the result of the proceeding would have
been different." Id. at 694. When a defendant
pleads guilty, "in order to satisfy the
'prejudice' requirement, the defendant must show that
there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill v. Lockhart,
474 U.S. 52, 59 (1985); see Lee v. United States,
137 S.Ct. 1958, 1967-69 (2017).
Sanders's claim that his trial and appellate counsel were
ineffective by failing to anticipate Johnson and to
challenge his status as a career offender, "an attorney
cannot be labeled ineffective for failing to anticipate a
future change in the law." Moss v. Ballard, 537
Fed.Appx. 191, 195 (4th Cir. 2013) (unpublished); see
United States v. McNamara, 74 F.3d 514, 516-17 (4th
Cir. 1996). Moreover, and in any event, such an argument
would have failed in light of Beckles, and counsel
is not ineffective for failing to raise a meritless argument.
See, e.g., Knowles v. Mirzayance,
556 U.S. 111, 126-27 (2009). Thus, Sanders has not plausibly
alleged deficient performance, and the court rejects his
ineffective assistance of counsel claim.
reviewing the claims presented in Sanders's motions, the
court finds that reasonable jurists would not find the
court's treatment of Sanders's claims debatable or
wrong and that the claims do not deserve encouragement to
proceed any further. Accordingly, the court denies a
certificate of appealability. See 28 U.S.C. § 2253(c);
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Sanders's section 3582 motion, Sanders again relies on
Johnson and attacks his designation as a career
offender. See [D.E. 90]. The argument fails. See
Beckles, 137 S.Ct. at 895-97; Mack, 855
F.3d at 584-85; Lee, 855 F.3d at 246-47; ...