United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 [DE 47] and his motion to appoint counsel [DE
48]. The government has moved to dismiss the petition [DE 54]
and the matter is ripe for disposition. For the reasons
discussed below, the government's motion to dismiss is
granted and petitioner's motions are dismissed.
January 18, 2012, petitioner pleaded guilty, pursuant to a
written plea agreement, to counts one and three of his
indictment: conspiracy to distribute and possession with
intent to distribute two hundred eighty grams or more of
cocaine base (crack) in violation of 21 U.S.C. § 846,
and possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c).
Petitioner was sentenced on April 14, 2012 to 240 months'
imprisonment on count one and 60 months' imprisonment on
count three, to run consecutively. [DE 29]. Petitioner did
not appeal his sentence. Later, upon a Rule 35(b) motion by
the government, his sentence was reduced to 120 months on
count one and 30 months on count two: [DE 40]. On March 21,
2016, pursuant to 18 U.S.C. § 3582(c)(2),
petitioner's sentence on count one was further reduced to
17, 2017, petitioner filed the instant motion. Petitioner
alleges that the Supreme Court's ruling in Dean v.
United States means that his sentence as to count one
may be again further reduced. See Dean v. United
States, 137 S.Ct. 1170 (2017). He argues that this
motion is not untimely because that case had not been decided
at the time of his conviction. The government has moved to
dismiss petitioner's motion on the grounds that
Dean does not provide him any avenue for relief
12(b)(6) motion to dismiss must be granted if the pleading
fails to allege enough facts to state a claim for relief that
is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also
Rule 12, Rules Governing Section 2255 Proceedings (Rules of
Civil Procedure apply to section 2255 proceedings).
Additionally, "vague and conclusory allegations
contained in a § 2255 petition may be disposed of
without further investigation by the District Court."
United States v. Dyess, 730 F.3d 354, 359 (4th Cir.
2013) (quoting United States v. Thomas, 221 F.3d
430, 437 (3rd Cir. 2000)). Petitioner's motion is denied
because his motion does not state a claim that is a plausible
ground for relief.
stands generally to reaffirm a sentencing court's
discretion in crafting a just and proportional sentence.
Dean v. United States, 137 S.Ct. 1170 (2017).
Specifically, it deals with the fact that a conviction under
§ 924(c) carries a mandatory minimum term, and that term
must be imposed consecutive to the sentence imposed for the
related, underlying offense. Id. at 1174. The Court
in Dean held that this mandatory consecutive
provision, and its effect on a defendant's entire
sentence, can be considered by the sentencing court when
sentencing on the other count or counts. Id. at
1176. If the § 924(c) mandatory minimums, which are
high-5 years for the first count, and an additional 25 for
the second-are enough, in the sentencing court's view, to
provide a just sentence, then the court has the discretion to
vary the sentence for the predicate offenses. Id. at
1177. That sentence can be lowered all the way down to one
day, if needed. Id. As that day would still be
consecutive to the § 924(c) sentence, the statutory
sentencing requirements would be followed. Id.
therefore, merited relief because the sentencing judge, as he
stated in open court, would have given him much lower
sentences on some of his charges than indicated by the
guidelines had he believed he had the discretion to do so.
Id. at 1175.
district courts in this circuit have held that Dean
does not apply retroactively to sentences attacked via §
2255. See, e.g., United States v. Dean, 2017 WL
6349834 at *2 (D. S.C. Dec. 13, 2017); United States v.
Adams, 2017 WL 2829704 at *2 (W.D. Va. June 29, 2017);
Morban-Lopez v. United States, 2017 WL 2682081 (W.D.
N.C. June 21, 2017). The Fourth Circuit has not spoken
squarely on the question, but it appears that § 2255
claims under Dean may, in some form, exist. See
United States v. Thompson, 714 Fed.Appx. 288 (4th Cir.
2018) (per curiam) (remanding for the district court to
specifically consider petitioner's claim under
Dean provides a new avenue for collateral attack,
petitioner here still has no opportunity for relief. When a
district court recognizes its own discretion to vary a
sentence outside of the sentencing guidelines as envisioned
by 18 U.S.C. § 3553(a), Dean does not apply,
because the problem in Dean was the sentencing
court's failure to reckon with its own discretion in
fashioning a just sentence.
the Court recognized its own discretion three times. First,
at the original sentencing, following the government's
motion pursuant to U.S.S.G. § 5K1., the Court departed
from the minimum guideline of 360 months on count one to a
term of 240 months. Second, upon the government's Rule
35(b) motion, the Court decreased the sentence on count one
from 240 months to 120 months, and the sentence on count two
from 60 months to 30 months. Third, pursuant to 18 U.S.C.
§ 3582(c)(2), the Court further reduced petitioner's
sentence on count one from 120 months to 96 months. Each
time, the Court acted within its discretion to fashion a
reasonable and proportional sentence. Accordingly,
Dean does not apply here, and petitioner's
motion under § 2255 is denied.
has also moved for the appointment of counsel. A movant under
§ 2255 is not automatically entitled to counsel.
United States v. Dean, No. 90-6916, 1991 U.S. App.
LEXIS, 10322, *5 (4th Cir. May 22, 1991) (unpublished)
(citing Pennsylvania v. Finley, 481 U.S. 551, 555
(1987)). More generally, a civil litigant must demonstrate
extraordinary circumstances to warrant the appointment of
counsel. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir.
1975). Petitioner has not demonstrated that he is entitled to
appointment of counsel at this time. For that reason, his
motion is denied.