United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge.
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.
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.
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).
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.
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.
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.
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.
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
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.
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). 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.
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.
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 ...