United States District Court, W.D. North Carolina, Charlotte Division
Cogburn 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), in which he seeks relief
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). Also pending is Respondent's Motion to Dismiss,
(Doc. No. 6).
pled guilty in the underlying criminal case to a single count
of possession of a firearm by a convicted felon in violation
of 18 U.S.C § 922(g)(1). (3:15-cr-211, Doc. Nos. 10, 11,
Presentence Investigation Report (“PSR”) scored
the base offense level as 20 pursuant to U.S. Sentencing
Guidelines § 2K2.1 because Petitioner committed the
offense after sustaining a felony conviction for a crime of
violence or a controlled substance offense. (3:15-cr-211,
Doc. No. 19 at ¶ 35). Three levels were deducted for
acceptance of responsibility, resulting in a total offense
level of 17. (3:15-cr-211, Doc. No. 19 at ¶¶
42-44). Petitioner had a criminal history category of III,
resulting in a guideline imprisonment range of 30 to 37
months. (3:15-cr-211, Doc. No. 19 at ¶ 46).
Court adopted the PSR without change and sentenced him to 30
months' imprisonment followed by three years of
supervised release. (3:15-cr-211, Doc. Nos. 21, 22).
Petitioner did not appeal.
filed the instant § 2255 Motion to Vacate on June 23,
2016. (Doc. No. 1). He argues that his PSR should not have
been calculated based on the § 2K2.1 enhanced offense
level in light of Johnson v. United States, 135
S.Ct. 2551 (2015). These proceedings were stayed pending the
outcome of Beckles v. United States, No. 15-8455.
(Doc. No. 5). Following Beckles' issuance, 137
S.Ct. 886, 894 (2017), the Government filed a Motion to
Dismiss, (Doc. No. 6), to which Petitioner failed to respond.
See (Doc. No. 7).
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).
argues that the enhanced base offense level pursuant to
Guidelines § 2K2.1 is invalid in light of
Johnson, the United States Supreme Court announced
that the Armed Career Criminal Act's (“ACCA”)
residual clause is void for vagueness, which is a
retroactively applicable right. Id.; Welch v.
United States, 136 S.Ct. 1257, 1265 (2016). However,
Johnson does not apply to the advisory sentencing
guidelines because “the Guidelines are not amenable to
a vagueness challenge.” Beckles v. United
States, 137 S.Ct. 886, 894 (2017).
Johnson attack on his career offender sentence is
squarely foreclosed by Beckles. Therefore, the
Government's Motion to Dismiss will be granted and