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Merritt v. United States

United States District Court, W.D. North Carolina, Asheville Division

May 17, 2018

KHARI ATIBA MERRITT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court upon Petitioner Khari Atiba Merritt's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 11.) Merritt is represented by the Federal Defenders of Western North Carolina, Inc.

         I. BACKGROUND

         Merritt was indicted on October 4, 2005, for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Indict., United States v. Merritt, No. 1:05-cr-00253-FDW (W.D. N.C. ), Doc. No. 1. He was released from federal custody on February 7, 2006, on an appearance bond. Bond, id. at Doc. No. 7. A superseding indictment was returned on February 8, 2006, adding a count of possession of ammunition by a convicted felon, in violation of § 922(g)(1). S. Indict., id. at Doc. No. 9.

         On February 28, 2006, Merritt pled guilty pursuant to a plea deal to Count Two of the superseding indictment. Accept. & Entry of Plea, id. at Doc. 17. The Government dismissed Count One. He was continued on the same conditions of release pending sentencing. Prob. Violation Rpt., id. at Doc. No. 16 (sealed).

         On May 3, 2006, while he was on release, Merritt was arrested and charged in state court with conspiracy to traffic cocaine. Id. The underlying conduct supporting those drug charges led to Merritt's indictment in federal court on June 6, 2006, on one count of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1)(B), (Count One) and two counts of distributing and possessing with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a), (b)(1)(C), 18 U.S.C. § 2, (Counts Two and Three). Indict., United States v. Merritt, No. 3:06-cr-00152-FDW (W.D. N.C. ), Doc. No. 1. Each of those counts also charged that Merritt committed the offenses while he was on release, in violation of 18 U.S.C. § 3147. Id.

         On November 16, 2006, Merritt pled guilty pursuant to a plea agreement to Count One of the indictment in Criminal No. 3:06-cr-00152. Accept. & Entry of Plea, id. at Doc. 10. The Government dismissed the other two counts.

         Subsequently, a probation officer prepared a joint presentence investigation report (“PSR”) for cases 1:05-cr-00253 and 3:06-cr-00152. Applying the 2006 United States Sentencing Guidelines (“U.S.S.G.”) Manual, the officer concluded that Merritt's combined adjusted offense level for the two counts of conviction was 26. PSR ¶ 42. The probation officer then identified four prior felony convictions, all in North Carolina, that triggered a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e), for the felon in possession of ammunition count, PSR ¶ 43, and a sentence enhancement under the career offender provisions of the Sentencing Guidelines for the drug conspiracy count, PSR ¶ 44.

         The Armed Career Criminal Act (“ACCA”) provides for a mandatory minimum sentence of 15 years in prison for a defendant convicted of being a felon in possession of a firearm or ammunition, if the defendant has at least three prior convictions for serious drug offenses or violent felonies. See § 924(e)(1). Without the ACCA enhancement, the statutory maximum sentence for someone convicted under § 922(g)(1) is 10 years imprisonment. See 18 U.S.C. § 924(a)(2). The career offender provisions of the sentencing guidelines raises the offense level for a defendant being sentenced for either a crime of violence or a serious drug offense, if he has two or more prior felony convictions for a crime of violence or a serious drug offense. See U.S.S.G. § 4B1.1 (2006). Merritt has two prior convictions for common law robbery and two prior convictions for assault with a deadly weapon with intent to kill inflicting serious injury that qualified as predicate offenses under both the ACCA and the career offender guidelines. PSR ¶¶ 43-44.

         Applying the ACCA enhancement to the § 922(g)(1) count, the probation officer increased the offense level in Criminal No. 1:05-cr-00253 to 33. Id. at ¶ 43. Applying the career offender guidelines enhancement to the drug conspiracy count, the officer increased the offense level in Criminal No. 3:06-cr-00152 to 32. Id. at ¶ 44. Because the offense level under the ACCA was higher, the sentencing guidelines required that offense level be applied to both counts. Id. at ¶ 45 (citing U.S.S.G. § 4B1.4(b)(2)). Accordingly, the offense level for both counts was enhanced to 33. Id. Finally, the probation officer applied a two level decrease for acceptance of responsibility, leaving Merritt with a total offense level of 31 for both counts of conviction. Id. at ¶¶ 46-47.

         The probation officer then determined that Merritt's criminal record placed him in criminal history category IV. PSR ¶ 57. Because Merritt was determined to be a career offender under the guidelines, however, his criminal history category was enhanced to VI, see U.S.S.G. § 4B1.1(b). PSR ¶ 57.

         The officer next calculated sentencing options for the Court. Due to the ACCA enhancement, the statutory imprisonment range for the § 922(g)(1) count was 15 years to life. Id. at ¶ 84 (citing 18 U.S.C. §§ 922(g), 924(e)). The statutory term of imprisonment for the drug count was no more than 20 years. Id. at ¶ 84. Additionally, Merritt was subject to a consecutive sentence of no more than 10 years for committing the drug offense while on release. Id. (citing 18 U.S.C. § 3147).[1] The guidelines sentencing range for a defendant with an offense level of 31 and a criminal history category of VI was 188 months to 235 months imprisonment. Id. at ¶ 85.

         Merritt was sentenced in both cases on December 12, 2007. The Court sentenced him to 188 months for the § 922(g)(1) conviction in No. 1:05-cr-00253 and imposed a concurrent 188-month term for the drug conviction in No. 3:06-cr-00152. Stmt. of Reasons Sec. IX, No. 3:06-cr-00152, Doc. No. 26 (sealed). The Court imposed a consecutive 47-month term of imprisonment for the § 3147 violation, for a total of 235 months confinement. Id. Judgment was entered on January 8, 2008. J., id. at Doc. No. 25. Petitioner did not file a direct appeal.

         In 2015, the United States Supreme Court issued its opinion in Johnson v. United States, holding that the residual clause in the ACCA's definition of “violent felony” is unconstitutionally vague under the Due Process Clause. 135 S.Ct. 2551, 2557 (2015). “Violent felony” is defined in the ACCA as “any crime punishable by imprisonment for a term exceeding one year” that “(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.” § 924(e)(2)(B) (2006) (emphasis added). The italicized closing words of § 924(e)(2)(B)(ii) constitute the ACCA's residual clause. Johnson, 135 S.Ct. at 2556. Thus, under Johnson, a defendant ...


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