United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr. United States District Judge.
MATTER is before the Court upon Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255. (Doc. No. 1.) Petitioner seeks relief
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). The Government has filed a Motion to Dismiss this
§ 2255 action. (Doc. No. 5).
19, 2013, Walker pled guilty in this Court to one count of
Possession of a Firearm by a Convicted Felon, in violation of
18 U.S.C. § 922(g). Plea, Doc. No. 10; Accept. and Entry
of Plea, Doc. No. 12. The presentence investigation report
(“PSR”) applied § 2K2.1(a)(2) of the United
States Sentencing Guidelines (“U.S.S.G.”) when
determining Walker's advisory guideline range. PSR ¶
21, Doc. No. 18. That provision provides a base offense level
of 24 to a defendant who committed his offense
“subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 2K2.1(a)(2). The
PSR shows Walker has prior state convictions for Common Law
Robbery ( N.C. ), Possession with Intent to Distribute Crack
Cocaine (GA), and Robbery with a Dangerous Weapon ( N.C. ).
PSR ¶ 21.
sentencing, the Court concluded Walker's sentencing
guideline range was 70-87 months imprisonment. Stmnt. of
Reasons Sect. III, Doc. No. 22. The Court sentenced Walker to
84 months in prison. J., Doc. No. 21. Walker did not appeal.
filed the instant pro se Motion to Vacate on June 1, 2016,
arguing that his sentence should be vacated and he should be
resentenced because, under Johnson, his prior North
Carolina conviction for common law robbery no longer
qualifies as a “crime of violence” under the
Guidelines. The Court stayed this action on November
10, 2016, pending the United States Supreme Court's
resolution of Beckles v. United States. (Doc. No.
has now been resolved. 137 S.Ct. 886 (2017). The Government
has filed a Motion to Dismiss the § 2255 Motion to
Vacate based on Beckles. (Doc. No. 5.) Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the Court notified Walker of his right to respond to the
Government's Motion and provided him 30 days to do so.
(Doc. No. 6.) As of entrance of this Order, Walker has not
responded to the Government's Motion to Dismiss.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings in the
United States District Courts 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).
announced that the Armed Career Criminal Act's
(“ACCA”) residual clause is void for vagueness, 135
S.Ct. at 2558; the right to raise a claim under
Johnson is retroactive on collateral review,
Welch v. United States, 136 S.Ct. 1257, 1265 (2016).
However, Johnson addresses only the ACCA's
residual clause and “does not call into question
application of the Act to the four enumerated offenses, or to
the remainder of the Act's definition of a violent
felony.” Johnson, 135 S.Ct. at 2563.
the holding in Johnson does not apply to the
advisory sentencing guidelines because “the Guidelines
are not amenable to a vagueness challenge.”
Beckles, 137 S.Ct. at 894. Accordingly,
Johnson is inapplicable to Walker's challenge to
the use of his common law robbery conviction as a predicate
offense under § 2K2.1. See id.
2255 relief is foreclosed under Beckles. See
id. Therefore, the Court shall deny Petitioner's
§ 2255 Motion to Vacate and ...