United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, 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 Place
Motion Under 28 U.S.C. § 2255 in Abeyance, (Doc. No. 4).
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). (3:14-cr-94, Doc. Nos. 22, 23).
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, that is, North Carolina conspiracy to commit armed
robbery. (3:14-cr-94, Doc. No. 33 at ¶ 20). Three levels
were deducted for acceptance of responsibility, resulting in
a total offense level of 17. (3:14-cr-94, Doc. No. 33 at
¶¶ 26-28). Petitioner had a criminal history score
of seven and a criminal history category of IV, resulting in
a guideline imprisonment range of 37 to 46 months.
(3:14-cr-94, Doc. No. 33 at ¶¶ 35, 36, 63).
Court adopted the PSR without change and, on July 30, 2015,
sentenced him to 42 months' imprisonment followed by two
years of supervised release. (3:14-cr-94, Doc. No. 37).
Petitioner did not appeal.
filed the instant § 2255 Motion to Vacate on July 18,
2016. (Doc. No. 1). He argues that counsel was ineffective
for failing to object to the § 2K2.1 enhancement at
sentencing in light of Johnson v. United States, 135
S.C. 2551 (2015), and that the misapplication of § 2K2.1
violates due process. The Court ordered the Government to
respond to the § 2255 Motion to Vacate, but instead, it
moved to stay the proceedings pending the outcome of
Beckles v. United States, No. 15-8455. (Doc. No. 4).
was placed on supervised release on August 16, 2017, and
revocation proceedings are underway. (3:14-cr-94, Doc. Nos. 45,
STANDARD OF REVIEW
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 and that counsel was ineffective for failing
to raise the issue at sentencing.
announced that the Armed Career Criminal Act's
(“ACCA”) residual clause is void for vagueness, and
that holding 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).
guideline sentencing claim is squarely foreclosed by
Beckles and counsel cannot be deemed ineffective for
failing to raise a meritless claim. See generally Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (“this
Court has never required defense counsel to pursue every