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. 8).
pled guilty in the underlying criminal case to a single count
of bank robbery by force, violence, and intimidation.
(3:13-cr-141, Doc. Nos. 48, 49, 51).
Presentence Investigation Report (“PSR”) scored
the base offense level as 20 pursuant plus a total of four
levels for specific offense characteristics, resulting in an
adjusted offense level subtotal of 24. (3:13-cr-141, Doc. No.
59 at ¶¶ 22-28). However, Petitioner qualified for
a Chapter Four career offender enhancement with a base
offense level of 32 because he had at least two prior felony
convictions for a crime of violence or controlled substance
offense. (3:13-cr-141, Doc. No. 59 at ¶ 32). Three
levels were deducted for acceptance of responsibility,
resulting in a total offense level of 29. (3:13-cr-141, Doc.
No. 59 at ¶¶ 30-32). Petitioner had 22 criminal
history points and a criminal history category of VI, and
further, the criminal history category for career offenders
is VI. (3:13-cr-141, Doc. No. 59 at ¶¶ 58-62). The
resulting advisory guideline range was 151 to 188 months'
imprisonment. (3:13-cr-141, Doc. No. 59 at ¶¶ 110).
Court adopted the PSR without change and sentenced him to 130
months' imprisonment followed by three years of
supervised release. (3:13-cr-141, Doc. No. 63). Petitioner
did not appeal.
filed the instant § 2255 Motion to Vacate on July 17,
2016. (Doc. No. 1). He argues that counsel was ineffective
for failing to object to his career offender enhancement
because his prior convictions are not crimes of violence 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.
8), arguing that Petitioner's sentencing claim is waived,
procedurally defaulted, and meritless. Petitioner has filed a
Response, (Doc. No. 10), in which he reiterates his
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 counsel was ineffective for failing to argue that
his career offender sentence 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, no
sentencing error occurred and counsel was not ineffective for
failing to object. Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (“this Court has never required defense
counsel to pursue every ...