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Baker v. United States

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

June 19, 2018

KEITH M. BAKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr., United States District Judge

         THIS 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 raises a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”).

         I. BACKGROUND

         Petitioner was indicted in the underlying criminal case for a single count of possession of a firearm by a convicted felon. (3:04-cr-217, Doc. No. 1). He pled guilty without a plea agreement. See (3:04-cr-217, Doc. No. 19).

         The PSR calculated the base offense level as 24 pursuant to U.S. Sentencing Guidelines § 2K2.1(a)(2). (PSR ¶ 13). However, Petitioner qualified as an armed career criminal with an offense level of 33 based on his prior New Jersey convictions for: distribution of cocaine (No. 3568-07-89); possession with intent to distribute cocaine within 1, 000 feet of a school (No. 3568-07-89); robbery (No. 3712-08-89); and robbery and attempt to commit robbery (No. 1371-07-90). (PSR ¶ 21). He received a three-level reduction for acceptance of responsibility resulting in a total offense level of 30. (PSR ¶¶ 22, 23). Petitioner had ten criminal history points and a criminal history category of V, and the criminal history category as an armed career criminal was also V. (PSR ¶ 39). The resulting guideline range was 180 to 188 months' imprisonment followed by at least three years, but not more than five years, of supervised release. (PSR ¶ 72, 75).

         The Court accepted the PSR without change and sentenced Petitioner to 180 months' imprisonment followed by five years of supervised release. (3:04-cr-217, Doc. Nos. 21, 22). He did not appeal.

         Petitioner filed the instant § 2255 Motion to Vacate on June 16, 2016. He argues that his prior convictions for New Jersey robbery are not “violent felonies” pursuant to Johnson, and accordingly his sentence exceeds the statutory maximum and violates due process. The Government argues that the New Jersey robbery convictions are violent felonies under ACCA's force clause and therefore Petitioner's ACCA sentence is legally sound.

         II. SECTION 2255 STANDARD OF REVIEW

         A 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).

         Rule 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 arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         Petitioner argues that his sentence under the Armed Career Criminal Act (“ACCA”) is illegal pursuant to Johnson II, because his prior New Jersey robbery convictions are not categorically violent felonies. The Court disagrees.

         Individuals such as convicted felons are prohibited from shipping, possessing, and receiving firearms. 18 U.S.C. § 922(g). Violations are generally punishable by up to 10 years' imprisonment. 18 U.S.C. § 924(a)(2). ACCA increases a prison term to a minimum of 15 years and a maximum of life if the violator has three or more prior convictions for a “serious drug offense” or “violent felony.” 18 U.S.C. § 924(e)(1). ACCA defines a “violent felony” as any felony that:

(i) has as an element the use, attempted use, or threatened use of physical force against the ...

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