United States v. Moore

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger United States District Judge.

         THIS MATTER is before the Court on the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1] and the Government's Motion to Dismiss [Doc. 5]. Petitioner is represented by Joshua Carpenter of the Federal Defenders of Western North Carolina.

         I. BACKGROUND

         On October 8, 2008, the Petitioner Frankie Lamar Moore, Jr. was charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [Criminal Case No. 1:08-cr-00101-MR (“CR”), Doc. 1]. The Petitioner pleaded guilty to the charge pursuant to a written plea agreement. [CR Doc. 10]. In the parties' agreement, the Petitioner agreed to waive his right to challenge his conviction or sentence in a motion filed under 28 U.S.C. § 2255, except on the basis of ineffective assistance of counsel and prosecutorial misconduct. [Id. at ¶ 19]. The Petitioner also acknowledged that the maximum term of imprisonment for a § 922(g) offense was ten years' imprisonment, but that if he were found to be an armed career criminal within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), he would face a statutorily required minimum sentence of 15 years and a maximum sentence of life imprisonment. [Id. at ¶ 3].

         On December 31, 2008, the Honorable Dennis L. Howell, United States Magistrate Judge, conducted a plea colloquy in accordance with Rule 11 of the Federal Rules of Criminal Procedure. [CR Doc. 11]. During the colloquy, the Petitioner affirmed that he understood the charge to which he was pleading guilty and the maximum penalties he faced. [Id. at ¶ 12]. The Petitioner also affirmed that he was, in fact, guilty of the offense to which he was pleading [Id. at ¶ 27], and that he understood that if his sentence was more severe than he expected, he would still be bound by his plea and have no right to withdraw it [Id. at ¶ 22]. The Petitioner further affirmed that he understood that, by executing the plea agreement, he had waived his right to challenge his conviction and/or sentence in a post-conviction proceeding, except on the bases of ineffective assistance of counsel or prosecutorial misconduct. [Id. at ¶ 34]. At the conclusion of the hearing, Judge Howell accepted the Petitioner's guilty plea as knowingly and voluntarily entered. [Id. at 9].

         In advance of the Petitioner's sentencing, the probation officer prepared a Presentence Report (“PSR”). [CR Doc. 13]. In the PSR, the probation officer recommended that the Petitioner be found to be an armed career criminal citing the following prior convictions:

(1) a consolidated North Carolina conviction for felony discharge of a firearm/weapon into occupied property and felony breaking and entering;^[1]

(2) two North Carolina convictions for felony common law robbery;

(3) a North Carolina conviction for assault with a deadly weapon inflicting serious injury (“AWDWISI”); and

(4) a South Carolina conviction for armed robbery.^[2]

[Id. at ¶¶ 28, 30, 35, 36, 37].

         The Petitioner's sentencing hearing was held on June 1, 2009, before the Honorable Lacy H. Thornburg, United States District Judge.^[3] At the hearing, the Court calculated a total offense level of 30 and a criminal history category of VI, which would yield an advisory Guidelines range of 168 to 210 months' imprisonment. The Court, however, also determined the Petitioner to be an armed career criminal, thus subjecting him to a mandatory minimum term of 180 months, thus adjusting his Guidelines range to 180 to 210 months. The Court sentenced the Petitioner to 195 months' imprisonment, the middle of that Guidelines range. [CR Doc. 16]. The Petitioner did not appeal.

         On June 2, 2016, the Petitioner filed the present motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his sentence was improperly enhanced under the ACCA in light of Johnson v. United States, 135 S.Ct. 2551 (2015). [Doc. 1]. On July 12, 2016, the Government filed a motion to dismiss the Petitioner's motion, contending that the Petitioner waived his right to seek collateral review of his sentence, except on bases not asserted in his motion; that the Petitioner's claim is procedurally defaulted; and that, in any event, he still has at least three qualifying predicates for purposes of the ACCA. [Doc. 5]. The Petitioner filed a reply in support of his motion to vacate on August 16, 2016. [Doc. 6]. At the request of the Court, the parties filed supplemental briefs in December 2017. [Docs. 8, 9, 10].

         Having been fully briefed, this matter is ripe for disposition.

         II. STANDARD OF REVIEW

         Rule 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 argument presented by the Petitioner 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).

         III. DISCUSSION

         A. Waiver

         The Government first contends that the Petitioner knowingly and voluntarily waived in his Plea Agreement any right to challenge his sentence in a post-conviction proceeding except for claims of ineffective assistance or prosecutorial misconduct. Accordingly, the Government contends, Petitioner has waived any right to assert his Johnson claim.

         Contrary to the Government's contention, the Petitioner's claim is not barred by his appellate waiver. While the Petitioner's Plea Agreement includes a waiver of all rights to appellate and post-conviction relief except on the grounds of prosecutorial misconduct and ineffective assistance of counsel, it is well-established that “a defendant could not be said to have waived his right to . . . review of a sentence imposed in excess of the maximum penalty provided by statute[.]” United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); see also United States v. Crisp, No. 2:14-cr-00023-MR, Doc. 9 at 6-7 (W.D. N.C. May 7, 2015) (“The language used in the parties' Plea Agreement stipulating that the Defendant may only appeal on the grounds of ineffective assistance and prosecutorial misconduct is not comprehensively correct. In addition to these grounds, a defendant can never waive his right to appeal a claim that a conviction was obtained in violation of the Sixth Amendment right to counsel; or that a sentence was imposed in excess of the maximum penalty provided by statute; or that a sentence was based on a constitutionally impermissible factor such as race.”) (internal citations omitted).

         Here, without the ACCA enhancement, the Petitioner would have faced a statutory maximum sentence of 120 months. See 18 U.S.C. § 924(a)(2). With the ACCA enhancement, however, the Petitioner faced a mandatory minimum sentence of at least 180 months. See 18 U.S.C. § 924(e). If the Petitioner's ACCA enhancement is determined to be invalid, then the Petitioner received a sentence greater than the maximum sentence he could have faced ...