United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), in which Petitioner seeks
relief pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015). The United States filed an unopposed
Motion to Place Motion Under 28 U.S.C. § 2255 in
Abeyance pursuant to Beckles v. United States. (Doc.
was found guilty by a jury of a single count of possession of
a firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). (3:11-cr-301, Doc. No.
30). The Presentence Investigation Report (“PSR”)
set the base offense level at 24 because Petitioner had at
least two prior felony convictions for a crime of violence.
(Id., Doc. No. 44 at ¶ 15); see
U.S.S.G. § 2K2.1(a)(2) (2012). No Chapter Four
enhancements were added. (3:11-cr-301, Doc. No. 44 at ¶
21). The PSR scored 17 criminal history points and a criminal
history category of VI. (Id., Doc. No. 44 at
¶¶ 45-46). The resulting guidelines imprisonment
range was 100 to 120 months. (Id., Doc. No. 44 at
Court sentenced Petitioner within the advisory guideline
range to 120months' imprisonment followed by three years
of supervised release. (Id., Doc. No. 49). The
Fourth Circuit Court of Appeals affirmed Petitioner's
conviction and sentence but remanded for correction of the
Judgment to move a “no contact” provision from
the imprisonment section to the supervised release section of
the judgment. United States v. Edge, 576 Fed.Appx.
275 (4th Cir. 2014). The United States Supreme
Court denied certiorari on November, 3, 2014. Edge v.
United States, 135 S.Ct. 466 (2014). The Court docketed
a corrected Judgment on September 17, 2014. (3:11-cr-301,
Doc. No. 71).
17, 2016, Petitioner filed the instant § 2255 Motion to
Vacate through counsel, arguing that his prior convictions no
longer qualify as “crimes of violence” pursuant
to Johnson and thus cannot support an enhanced
offense level pursuant to Section 2K2.1. (Doc. No. 1). The
Court ordered the Government to respond, but instead, it
filed an unopposed motion to stay this action pending the
United States Supreme Court's decision in Beckles v.
United States. On March 6, 2017, the Supreme Court held
that the advisory guidelines are not subject to vagueness
challenges. Beckles v. United States, 137 S.Ct. 886
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a).
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 based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
argues that the enhanced base offense level pursuant to
Guidelines § 2K2.1(a) does not apply to him because his
prior North Carolina convictions for common law robbery and
second-degree arson are not “crimes of violence”
in light of Johnson v. United States, 135 S.Ct. 2551
announced that the Armed Career Criminal Act's
(“ACCA”) residual clause is void for vagueness, and
that holding recognizes a retroactively applicable right.
See Welch v. United States, 136 S.Ct. 1257, 1265
(2016). Johnson addresses only ACCA's residual
clause and “does not call into question application of
the Act to the four enumerated offense, or to the remainder
of the Act's definition of a violent felony.”
Johnson, 135 S.Ct. at 2563. Nor does
Johnson apply to the advisory sentencing guidelines
because “the Guidelines are not amenable to a vagueness
challenge.” Beckles v. United States, 137
S.Ct. 886, 894 (2017).
Johnson does not apply to the Sentencing Guidelines,
Petitioner's § 2255 Motion to Vacate is time-barred
and meritless. See Beckles, 137 S.Ct. at 894; 28
U.S.C. § 2255(f)(3); United States v. Brown,
868 F.3d 297, 303 (4th Cir. 2017) (holding that
Johnson did not recognize the right the defendant
asserted - to have his guidelines range calculated without
the sentencing guidelines' residual clause - and
therefore § 2255(f)(3) did not re-start his time to file
his motion to vacate). The instant § 2255 Motion to
Vacate is therefore dismissed with prejudice as time-barred
and, alternatively, denied on the merits.