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McCoy v. United States

United States District Court, W.D. North Carolina, Charlotte Division

January 16, 2018



          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court upon Petitioner Antwaine Lamar McCoy's Motion to Vacate, Set Aside or Correct Sentence, 28 U.S.C. § 2255 (Doc. No. 1), seeking relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). Also before the Court is the Government's Motion to Dismiss the Motion to Vacate. (Doc. No. 7.) McCoy is represented by counsel.

         I. BACKGROUND

         On June 16, 2004, McCoy pled guilty in this Court to possession with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841, 846, and 851 (Count One), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 921(g) (Count Three). Plea Agree., Doc. No. 17; Entry and Accept. Plea, Doc. No. 19.[1] As part of his plea agreement, McCoy “stipulate[d] that based on his criminal history, he qualifies as an Armed Career Criminal, and will be sentenced to a minimum term of 15 years in Count Three.” Plea Agree. ¶ 7(b).

         A probation officer prepared a presentence investigation report (“PSR”), using the 2003 United States Sentencing Guidelines (“U.S.S.G.”) Manual. PSR ¶ 19, Doc. No. 59. The probation officer determined that based upon his criminal history, including convictions in North Carolina for voluntary manslaughter and possession with intent to sell and deliver cocaine, McCoy was an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). PSR ¶¶ 14, 34. 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 § 924(e)(1). Without the ACCA enhancement, the statutory maximum for a § 922(g) conviction is 10 years in prison. See § 924(a)(2).

         The probation officer also determined McCoy was subject to a sentence enhancement as a career offender under U.S.S.G. § 41B.1. PSR ¶ 35. Under the career offender Guidelines, a defendant is a career offender if, among other things, he has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a)(3) (2003). Because of his status as a career offender under the Sentencing Guidelines, McCoy's criminal history category was VI.

         With the U.S.S.G. § 41B.1 career offender enhancement, McCoy faced a range of 262 to 327 months in prison for both counts of conviction. PSR ¶ 81. As noted, the armed career criminal enhancement required a minimum prison sentence of 15 years (180 months) for the § 922(g) conviction. PSR ¶ 80. The Court imposed concurrent sentences of 262 months for each count of conviction. J., Doc. No. 26. Judgment was entered on March 15, 2005. Id. The Fourth Circuit Court of Appeals dismissed McCoy's direct appeal on January 18, 2016. Order, Doc. No. 39.

         McCoy filed a motion to vacate, set aside or correct sentence on July 31, 2006, alleging trial counsel provided ineffective assistance by not filing a timely notice of appeal. Doc. No. 45. This Court vacated judgment for the sole purpose of allowing McCoy to file a direct appeal. Doc. No. 52. The Fourth Circuit affirmed McCoy's judgment on appeal. United States v. McCoy, 227 F. App'x 301, 2007 WL 1455051 (4th Cir. 2007) (unpublished), cert. denied, 128 S.Ct. 1300 (2008).

         On February 13, 2009, McCoy filed another motion to vacate, which this Court denied on the merits. Doc. Nos. 68, 70. The Fourth Circuit affirmed. United States v. McCoy, 589 F. App'x 169 (4th Cir. 2015) (unpublished), cert. denied, 136 S.Ct. 894 (2016).

         On June 26, 2015, the United States Supreme Court issued its opinion in Johnson v. United States, 135 S.Ct. 2551 (2015). In that case, the Court held that the residual clause in the ACCA's definition of “violent felony” is unconstitutionally vague under the Due Process Clause of the Fifth Amendment. 135 S.Ct. at 2558.

         The ACCA defines “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 another.” § 924(e)(2)(B) (emphasis added). The italicized closing words of § 924(e)(2)(B) constitute the ACCA's residual clause, which the Johnson Court struck as unconstitutional. 135 S.Ct. at 2556, 2558. The Court left intact the remainder of the ACCA's “violent felony” definition, including the four enumerated offenses and the “force clause.” Id. at 2563.

         Thus, a defendant who was sentenced under the ACCA to a mandatory minimum term in prison based on a prior conviction that satisfies only the residual clause of the ACCA's “violent felony” definition is entitled to relief from his sentence. In Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson applies to cases on collateral review.

         Seeking to take advantage of the holding in Johnson, McCoy filed a motion for authorization to file a successive motion to vacate. In re McCoy, No. 16-760 (4th Cir. June 20, 2016). The Fourth Circuit granted authorization, and through counsel, McCoy filed a motion to vacate on June 20, 2016, claiming that, in light of Johnson, he no longer qualifies as a career offender under the Sentencing Guidelines. (§ 2255 Mot. 1, 10, Doc. No. 1.) Although Johnson involved the ACCA, McCoy contends the holding also invalidates the residual clause of the career offender Sentencing Guidelines, see U.S.S.G. § 4B1.2(a)(2) (2003).[2] (§ 2255 Mot. 3.) He asserts that North Carolina's crime of voluntary manslaughter qualifies as a predicate offense only under § 4B1.2(a)'s residual clause. (§ 2255 Mot. 4.)

         On October 7, 2016, this Court entered an Order holding this action in abeyance pending the Supreme Court's decision in Beckles v. United States. (Doc. No. 4.) Beckles was decided on March 6, 2017. 137 S.Ct. 886 (2017). The Supreme Court held that the advisory Sentencing Guidelines, including U.S.S.G. § 4B1.2(a)'s residual clause, are not subject to a vagueness challenge under the Due Process Clause because the advisory Guidelines “do not fix the permissible range of sentences” but “merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range.” 137 S.Ct. at 892. In other words, the residual clause of U.S.S.G. § 4B1.2(a) remains valid after Johnson.

         The Government filed a Motion to Dismiss McCoy's Motion to Vacate, contending that relief is foreclosed by the holding in Beckles. (Doc. No. 7.) Thereafter, McCoy filed a pleading titled “Response in Opposition to Government's Motion to Dismiss.” (Doc. No. 8.) In it, McCoy does not contest the Government's argument for dismissal. Indeed, McCoy does not even acknowledge the Government's argument and makes no further reference, whatsoever, to his status or sentence under the career offender Guidelines. Instead, he contends the Government waived opposition to habeas relief by failing to address the constitutionality of his enhanced sentence as an armed career criminal under 18 U.S.C. § 924(e). (Doc. No. 8 at 2.) McCoy then argues that, in light of Johnson, he no longer qualifies ...

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