United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
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.
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. 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).
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 §
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.
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.
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).
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).
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.
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.
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.
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). (§ 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.)
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
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 ...