Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Collins v. United States

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

May 17, 2018

JERRY THOMAS COLLINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER is before the Court upon the Government's Motion to Dismiss (Doc. No. 5) Petitioner Jerry Thomas Collins's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Doc. No. 1). Petitioner is represented by the Federal Defenders of Western North Carolina, Inc.; he seeks relief under Johnson v. United States, 135 S.Ct. 2551 (2015).

         I. BACKGROUND

         On November 3, 2006, Collins entered a straight up guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1) (Count One); possession with intent to distribute cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841 (Count Two); and possession of a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count Three). Accept. and Entry of Guilty Plea, Doc. 18.[1]The probation office prepared a presentence report (“PSR”), recommending that Collins be sentenced as a career offender under the United States Sentencing Guidelines and an armed career criminal under the Armed Career Criminal Act (“ACCA”) based on his prior convictions for attempted robbery with a dangerous weapon, robbery with a dangerous weapon, and larceny from a person. PSR ¶¶ 17, 27, 31, 44-46, Doc. No. 38.

         With a total offense level of 34 and a criminal history category of VI, Collins's guidelines range was 322 to 387 months in prison. PSR ¶¶ 29, 31-32, 48, 70; U.S.S.G. § 4B1.1(c)(2). Due to application of the ACCA, Count One carried a mandatory minimum sentence of not less than 15 years in prison; Count Two was not less than ten years in prison and no more than life, and Count Three required a mandatory consecutive sentence of not less than five years. PSR ¶ 69. This Court sentenced Collins to 262 months of imprisonment in Counts One and Two, to run concurrently, and to 60 months of imprisonment in Count Three, to run consecutively. J., Doc. No. 22.

         On July 12, 2016, Collins filed the present successive motion to vacate, dated June 21, 2016, after he received authorization from the Fourth Circuit to do so.[2] (Doc. No. 1; Doc. No. 1-1.) The Federal Defenders of Western North Carolina entered a notice of appearance and a motion to stay (Doc. Nos. 3-4) pending the Fourth Circuit's decision in United States v. Burns-Johnson, which this Court granted.

         The Fourth Circuit has issued its opinion in Burns-Johnson, 864 F.3d 313 (4th Cir.), cert denied, 138 S.Ct. 461 (2017), and the Government has filed a Motion to Dismiss Collins's § 2255 Motion. The Government contends relief is foreclosed by the Fourth Circuit's decision in Burns-Johnson and the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). Collins has neither responded to the Government's Motion to Dismiss, nor sought an extension of time to do so.

         II. STANDARD OF REVIEW

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of an action based upon a “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a viable claim for relief under § 2255, a petitioner must prove that: (1) the sentence imposed “violat[ed] . . . the Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose such a sentence;” or (3) “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). After examining the record in this matter, the Court finds this action can be resolved based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         A. Armed Career Criminal Status

         Petitioner contends that his sentence in Count One must be vacated because he no longer qualifies as an armed career criminal in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The ACCA, 18 U.S.C. § 924(e), provides for a mandatory minimum term of fifteen years' imprisonment for any defendant who violates 18 U.S.C. § 922(g)

         and who has three previous convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). When Petitioner was sentenced, a “violent felony” was defined as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [(the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.