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Walker v. United States

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

May 29, 2018

DERRICK WALKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Max O. Cogburn Jr. United States District Judge.

         THIS 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).

         I. BACKGROUND

         On June 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.[1] 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.

         At 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.

         Walker 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.[2] The Court stayed this action on November 10, 2016, pending the United States Supreme Court's resolution of Beckles v. United States. (Doc. No. 4.).

         Beckles 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.

         II. STANDARD OF REVIEW

         Rule 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).

         III. DISCUSSION

         Johnson announced that the Armed Career Criminal Act's (“ACCA”) residual clause[3] 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.

         Moreover, 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.

         IV. CONCLUSION

         Section 2255 relief is foreclosed under Beckles. See id. Therefore, the Court shall deny Petitioner's ยง 2255 Motion to Vacate and ...


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