United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
December 15, 2015, Desmond Farmer ("Farmer") moved
to reduce his sentence under 18 U.S.C. § 3582(c),
U.S.S.G. § 1B1.10(c), and Amendment 782 [D.E. 61].
OnFebruary23, 2017, Farmer moved to extend time to file a
motion under 28 U.S.C. § 2255 [D.E. 64]. On March 1,
2017, Farmer moved under 28 U.S.C. § 2255 to vacate, set
aside, or correct his 168-month sentence [D.E. 65]. On May 1,
2017, the government moved to dismiss Farmer's section
2255 motion [D.E. 69] and filed a memorandum in support [D.E.
70]. Farmer did not respond. As explained below, the court
grants the government's motion to dismiss, dismisses
Farmer's section 2255 motion, and denies Farmer's
motion under 18 U.S.C. § 3582(c).
September 4, 2013, pursuant to a plea agreement, Farmer
pleaded guilty to conspiracy to distribute and possess with
intent to distribute 100 grams or more of a mixture and
substance containing a detectable amount of phencyclidine
("PCP") in violation of 21 U.S.C. § 846. See
[D.E. 23, 25]. On May 22, 2014, at Farmer's sentencing
hearing, the court calculated Fanner's total offense
level to be 33, his criminal history category to be HI, and
his advisory guideline range to be 168 to 210 months'
imprisonment. See Sentencing Tr. [D.E. 55] 4-10. After
thoroughly considering all relevant factors under 18 U.S.C.
§ 3553(a), the court sentenced Farmer to 168 months'
imprisonment. See id. at 13-18.
appealed. On April 27, 2015, the United States Court of
Appeals for the Fourth Circuit affirmed this court's
judgment. See United States v. Farmer. 599 Fed.Appx.
525, 526 (4th Cir. 2015) (per curiam) (unpublished).
March 1, 2017, Farmer filed his section 2255 motion [D.E.
65]. In his motion Farmer makes two claims concerning his
sentence: (1) this court miscalculated his advisory guideline
range; and (2) the court should not have included in the
advisory guideline calculation the drug weight that Farmer
described in an unprotected statement because Farmer was
under the influence of percocet when he confessed. See id.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a claim's legal and
factual sufficiency. See Ashcroftv.Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twomblv. 550
U.S. 544, 555-63, 570 (2007); Coleman v. Md. Court of
Appeals. 626 F.3d 187, 190 (4th Cir. 2010),
affd. 566 U.S. 320 (2012); Giarratano v.
Johnson. 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. Pardus. 551 U.S. 89, 93-94 (2007) (per
curiam). The government may challenge the legal sufficiency
of a section 2255 petition through a motion to dismiss under
Rule 12(b)(6). See Rule 12, Rules Governing Section 2255
Proceedings; United States v. Fradv. 456 U.S. 152,
166-68 n.15 (1982); United States v. Reckmeyer. 900
F.2d 257, at *4 (4th Cir. 1990) (unpublished table decision).
In considering a motion to dismiss, a court need not accept a
complaint's legal conclusions. See, e.g.. Iqbal.
556 U.S. at 678. Similarly, a court "need not accept as
true unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3dat3O2
(quotation omitted): see Iqbal. 556 U.S. at 677-79.
Moreover, a court may take judicial notice of public records
without converting a motion to dismiss into a motion for
summary judgment. See, e.g.. Fed.R.Evid. 201;
Tellabs. Inc. v. Makor Issues & Rights. Ltd..
551 U.S. 308, 322 (2007); Philips v. Pitt Ctv. Mem'l
Hosp.. 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a
section 2255 motion, the court is not limited to the motion
itself. The court also may consider "the files and
records of the case." 28 U.S.C. § 2255(b); see
United States v. McGill. 11 F.3d 223, 225 (1st Cir.
plea agreement contains a waiver of rights. See [D.E. 25]
¶ 2(c). In the waiver, Fanner agreed
To waive knowingly and expressly all rights, conferred by 18
U.S.C. § 3742, to appeal whatever sentence is imposed,
including any issues that relate to the establishment of the
advisory Guideline range, reserving only the right to appeal
from a sentence in excess of the applicable advisory
Guideline range that is established at sentencing, and
further to waive all rights to contest the conviction or
sentence in any post-conviction proceeding, including one
pursuant to 28 U.S.C. § 2255, excepting an appeal or
motion based upon grounds of ineffective assistance of
counsel or prosecutorial misconduct not known to the
Defendant at the time of the Defendant's guilty plea. The
foregoing appeal waiver does not constitute or trigger a
waiver by the United States of any of its rights to appeal
provided by law.
Id. In light of Farmer's Rule 11 proceeding and
governing law, the waiver is enforceable. See Rule 11 Tr.
[D.E. 56] 16-33; see also United States v. Copeland.
707 F.3d 522, 528-30 (4th Cir. 2013); United States v.
Davis. 689 F.3d 349, 354-55 (4th Cir. 2012) (per
curiam); United States v. Blick. 408 F.3d 162, 168
(4th Cir. 2005). Farmer's claims concerning the
court's calculation of his advisory guideline range fall
within the waiver. Thus, the waiver bars the claims.
Farmer failed to raise these claims on direct appeal. Thus,
the general rule of procedural default bars Farmer from
presenting these claims under section 2255. See,
e.g.. Massaro v. United States. 538
U.S. 500, 504 (2003); Bouslev v. United States. 523
U.S. 614, 621 (1998); United States v. Fueit. 703
F.3d 248, 253 (4th Cir. 2012); United States v.
Sanders. 247 F.3d 139, 144 (4th Cir. 2001). Furthermore,
Farmer has not plausibly alleged "actual innocence"
or "cause and i prejudice"
resulting from the alleged errors about which he now
complains. See Bousley. 523 U.S. at 622-24;
Coleman v. Thompson. 501 U.S. 722, 753 (1991);
United States v. Fradv. 456 U.S. 152, 170 (1982);
United States v. Pettiford. 612 F.3d 270, 280-85
(4th Cir. 2010); United States v. Mikalajunas. 186
F.3d 490, 492-95 (4th Cir. 1999). Accordingly, the claims
Farmer cannot use section 2255 to attack retroactively his
advisory guideline range. See, e.g., United States v.
Foote. 784 F.3d 931, 935-36 (4th Cir. 2015); United
States v. Present 190 F.3d 279, 283-84 (4th Cir. 1999);
see also Whiteside v. United States. 775 F.3d 180,
183-87 (4th Cir. 2014) (en banc); Mikalaiunas. 186
F.3d at 495-96. Thus, the claims fail.
this court's alternative variant sentence defeats
Farmer's arguments concerning the calculation of his
advisory guidelines range. See Sentencing Tr. at 17 (citing
United States v. Gomez-Jimenez. 750 F.3d 370, 382-86
(4th Cir. 2014); United States v. Hargrove. 701 F.3d
156, 160-65 (4th Cir. 2012)). Thus, the claims fail.
reviewing the claims presented in Farmer's motion, the
court finds that reasonable jurists would not find the
court's treatment of Farmer's claims debatable or
wrong and that the claims deserve no encouragement to proceed
any further. Accordingly, the court denies a certificate of
appealability. See 28 U.S.C. § 2253(c); M ...