United States District Court, W.D. North Carolina, Charlotte Division
KEITH M. BAKER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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 raises a claim
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015) (“Johnson II”).
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).
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).
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.
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.
SECTION 2255 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 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).
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.
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 ...