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.
pled guilty in the underlying criminal case to a single count
of conspiracy to distribute and possess with intent to
distribute heroin. (3:09-cr-153, Doc. Nos. 67, 70). The
Presentence Investigation Report (“PSR”) set the
base offense level at 28 based on the drug quantity, however,
Petitioner qualifies as a career offender with an offense
level of 37. (3:09-cr-153, Doc. No. 89 at ¶¶ 38,
44). Three levels were deducted for acceptance of
responsibility resulting in a total offense level of 34.
(3:09-cr-153, Doc. No. 89 at ¶¶ 45, 46). Petitioner
had 13 criminal history points and two levels were added
because the offense was committed while he was on supervised
release. (3:09-cr-153, Doc. No. 89 at ¶¶ 87-88).
This resulted in 15 criminal history points and a criminal
history category of VI. (3:09-cr-153, Doc. No. 89 at
¶¶ 88-89). In addition, the criminal history
category for career offenders is VI. (3:09-cr-153, Doc. No.
89 at ¶ 89). This resulted in an advisory guideline
range of 262 to 327 months' imprisonment. (3:09-cr-153,
Doc. No. 89 at ¶ 140). However, the Government withdrew
the Notice it had filed pursuant to 21 U.S.C. § 851
which changed the total offense level to 31 and the statutory
penalty to between five and 40 years, and the imprisonment
range to 188 to 235 months. (3:09-cr-153, Doc. No. 112). The
Court sentenced Petitioner to 188 months' imprisonment
followed by four years of supervised release. (3:09-cr-153,
Doc. No. 111). Petitioner did not appeal.
filed a § 2255 Motion to Vacate that was docketed in
case number 3:11-cv-439-RJC. The Court denied and dismissed
the petition with prejudice. Moore v. United States,
2015 WL 5007812 (W.D. N.C. Aug. 20, 2015).
obtained permission from the Fourth Circuit Court of Appeals
to file this second § 2255 Motion to Vacate, which he
filed through counsel on June 23, 2016. (Doc. No. 1).
Petitioner argues that he does not qualify for sentencing as
a career offender because his prior conviction for attempted
breaking and entering is not a “crime of
violence” in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). 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.
(Doc. No. 4). 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.
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.