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).
and two co-defendants were indicted for: Count (1),
conspiracy to commit theft of a firearm from a federal
firearm licensee; Count (2), theft from a licensed firearm
dealer and aiding and abetting the same; and Count (3),
possession of stolen firearms and aiding and abetting the
same. (3:16-cr-303, Doc. No. 22).
pled guilty to Count (2) in exchange for the Government's
dismissal of the remaining Counts. (3:16-cr-303, Doc. No.
54). The plea agreement contained appellate and
post-conviction waivers. (3:16-cr-303, Doc. No. 54 at 4).
admitted in the written factual proffer in support of his
guilty plea that he, his two co-defendants, and an unindicted
co-conspirator “burglarized The Range at Lake Norman, a
Federal Firearms Licensee….” (3:16-cr-303, Doc.
No. 55 at 1). Petitioner and two of the other pariticipants
broke out glass in a door with a hammer, entered the entry
are and broke a second window. They entered the gun store and
“[a]ll three men grabbed rifles and/or
pistols….” (3:16-cr-303, Doc. No. 55 at 2).
Presentence Investigation Report (“PSR”) scored
the base offense level as 18. (3:16-cr-303, Doc. No. 73 at
¶ 35). Six levels were added because the offense
involved 25 or more firearms and two more levels were added
because the firearms were stolen. (3:16-cr-303, Doc. No. 73
at ¶¶ 36-37). Four levels were added because
Petitioner used or possessed a firearm or ammunition in
connection with another felony offense, “burglary at
The Range at Lake Norman, ” or possessed or transported
any firearm or ammunition with knowledge, intent, or reason
to believe that it would be used or possessed in connection
with another felony. (3:16-cr-303, Doc. No. 73 at ¶ 38).
Three levels were deducted for acceptance of responsibility,
resulting in a total offense level of 27. (3:16-cr-303, Doc.
No. 73 at ¶¶ 45-47). Petitioner had zero criminal
history points and a criminal history category of I.
(3:16-cr-303, Doc. No. 73 at ¶ 52). The resulting
advisory guideline range was 70-87 months' imprisonment.
(3:16-cr-303, Doc. No. 73 at ¶ 74).
sentencing, the guideline range was adjusted to reflect the
correct number of firearms involved, and the final guideline
range was 57-71 months' imprisonment. See
(3:16-cr-303, Doc. No. 82). The Court sentenced Petitioner at
the bottom of the guidelines to 57 months' imprisonment
followed by three years of supervised release. (3:16-cr-303,
Doc. No. 73 at ¶ 81). The Fourth Circuit affirmed on
March 29, 2018. See (3:16-cr-303, Doc. No. 98).
filed the instant § 2255 Motion to Vacate on March 12,
2018. He argues that counsel was ineffective for failing to
object to the four-level increase pursuant to Guidelines
§ 2K2.1(b)(6)(B) because he did not possess any firearm
when he entered the gun store, did not use any of the stolen
weapons to commit a separate offense, and is therefore being
punished twice for the same conduct.
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). 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 based on the
record and governing case law. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
U.S. Sentencing Guidelines provide as follows with regard to
specific offense characteristics for firearms offenses:
If the defendants … used or possessed any firearm or
ammunition in connection with another felony offense; or
possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used
or possessed in ...