United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge
MATTER is before the Court on the Government's
Motion to Dismiss Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence, (Doc. No. 7), and the Federal
Defender's Motion to Withdraw as Counsel, (Doc. No. 8).
pled straight up to a single count of possession of a firearm
by a felon in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e). See (3:16-cr-315, Doc. No. 14). The
Presentence Investigation Report (“PSR”) scored
Petitioner's offense level as 33 because he qualified for
enhanced sentencing under the Armed Career Criminal Act
(“ACCA”) with the following prior convictions for
a violent felony or serious drug offense: South Carolina
voluntary manslaughter, armed robbery, possession with intent
to distribute cocaine base, burglary, and strong-arm robbery.
(3:16-cr-315, Doc. No. 19 at ¶ 23). Three levels were
deducted for acceptance of responsibility, resulting in a
total offense level of 30. (3:16-cr-315, Doc. No. 19 at
¶¶ 24-26). Petitioner had 16 criminal history
points and a criminal history category of VI. (3:16-cr-315,
Doc. No. 19 at ¶¶ 43-45). This resulted in an
advisory guideline range of 180 to 210 months'
imprisonment. (3:16-cr-315, Doc. No. 19 at ¶ 68).
Court sentenced Petitioner as an armed career criminal to 180
months' imprisonment followed by three years of
supervised release. (3:16-cr-315, Doc. No. 24). Counsel filed
a memorandum brief on direct appeal. The Fourth Circuit Court
of Appeals affirmed after reviewing the entire record and
finding no meritorious issues for appeal. United States
v. Rollerson, 538 Fed.Appx. 318 (4th Cir.
2013). The United States Supreme Court denied certiorari on
January 13, 2014. Rollerson v. United States, 134
S.Ct. 951 (2014).
filed the instant § 2255 Motion to Vacate through
counsel on June 10, 2016, arguing that he should be
resentenced without the ACCA enhancement because his
convictions for South Carolina burglary, robbery, and
voluntary manslaughter are not violent felonies under
Johnson v. United States, 135 S.Ct. 2551 (2015). The
Court granted Respondent's unopposed Motion to Stay the
§ 2255 proceedings pending the outcome of United
States v. Doctor, No. 15-4764, and United States v.
Weston, 15-4744. (Doc. Nos. 3, 4). On April 13, 2018,
the Respondent filed a Motion to Dismiss because the
decisions in United States v. Doctor, 842 F.3d 306
(4th Cir. 2016), cert. denied, 137 S.Ct.
1831 (2017), and United States v. Weston, 681
Fed.Appx. 235 (4thCir. 2017), cert.
denied, 2018 WL 1568083 (April 2, 2018), establish that
Petitioner has at least three qualifying predicate offenses
under ACCA. (Doc. No. 7). Appointed counsel has moved to
withdraw because he can no longer make a non-frivolous
argument for relief in light of Weston. (Doc. No.
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).
provides for a minimum mandatory 15-year sentence for any
defendant who violates 18 U.S.C. § 922(g) and has three
prior convictions for a “violent felony” or
“serious drug offense.” 18 U.S.C. §
924(e)(1). A “violent felony” is defined as any
(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.
18 U.S.C.A. § 924(e)(2)(B) (emphasis added).
italicized portion of the definition is referred to as the
residual clause. In Johnson, the Supreme Court
announced that the residual clause is void for vagueness,
which is 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 ...