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Misenheimer v. United States

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

July 27, 2018

LOUIS DANIEL MISENHEIMER, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Max O. Cogburn Jr., United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, pursuant to 28 U.S.C. § 2255, (Doc. No. 1), on the Government's Motion to Dismiss Petitioner's Motion to Vacate, (Doc. No. 7), on the Government's Motion to Amend/Correct Motion to Dismiss Petitioner's Motion to Vacate, (Doc. No. 8), and on the Government's Amended Motion to Dismiss Petitioner's Motion to Vacate, (Doc. No. 9). Petitioner Louis Daniel Misenheimer is represented by Joshua Carpenter of the Federal Public Defenders of Western North Carolina.

         Petitioner seeks relief from his 180-month sentence under 28 U.S.C. § 2255, arguing that he was improperly sentenced as an armed career criminal because he does not have three prior convictions for violent felonies within the meaning of the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e). Petitioner relies on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), and the decisions by Fourth Circuit Court of Appeals in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). For the following reasons, the motion to vacate will be granted.

         I. BACKGROUND

         In 2011, Charlotte-Mecklenburg police officers attempted to speak to Petitioner, who was sitting in the passenger seat of a car parked at a Budget Inn in Charlotte, North Carolina. (Crim. Case No. 3:12-cr-70-MOC-1, Doc. No. 24 at ¶ 8: PSR). Petitioner jumped into the driver's seat of the car and attempted to flee. (Id.). Officers subdued Petitioner and found that he was carrying a stolen, loaded, Taurus .25-caliber handgun. (Id.). Officers searched the car and found crack cocaine, marijuana, and a digital scale. (Id.). Petitioner admitted that he was attempting to sell crack cocaine and that he knew that he should not have possession of a firearm. (Id. at ¶ 10).

         A grand jury charged Petitioner with distribution and possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One); possession of a firearm in furtherance of a drug-trafficking crime, in violation of 21 U.S.C. § 924(c) (Count Two); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count Three). (Id., Doc. No. 3: Sealed Indictment). The Government filed an Information pursuant to 18 U.S.C. § 3559(c) and 21 U.S.C. § 851, indicating that Petitioner was subject to a mandatory life sentence based on his prior North Carolina state convictions for possession with intent to sell/deliver cocaine, assault with a deadly weapon inflicting serious injury, and robbery with a dangerous weapon. (Id., Doc. No. 10: Information). Petitioner's assault offense occurred in 1992. (Doc. No. 7-1 at 8: Gov. Ex. 1). He was charged with “unlawfully, willfully and feloniously assaulting [the victim] with a handgun, a deadly weapon, with the intent to kill [the victim], ” under N.C. Gen. Stat. § 14-32(c). (Id.). Petitioner agreed to plead guilty to the lesser charge of assault with a deadly weapon inflicting serious injury, under N.C. Gen. Stat. § 14-32(b). Although the presumptive term of imprisonment for this offense was three years, Petitioner received an eight-year sentence. (Id. at 4, 6).

         Petitioner agreed to plead guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count Three). (Crim. Case No. 3:12-cr-70-MOC-1, Doc. No. 18 at ¶ 1: Plea Agreement). This offense generally carries a maximum term of ten years. See 18 U.S.C. § 922(g); 18 U.S.C. § 924(a)(2). As part of his plea agreement, he agreed that he was an armed career criminal under 18 U.S.C. § 924(e)(1), which subjected him to a 15-year mandatory minimum sentence. (Id. at ¶ 7(b)). In exchange, the Government agreed to dismiss Counts One and Two of the indictment and to withdraw the Section 851 Information filed in support of a mandatory life sentence. (Id. at ¶¶ 2, 7). Petitioner also agreed to waive the right to challenge his conviction and sentence on appeal or in any post-conviction proceeding, except as to claims of ineffective assistance or prosecutorial misconduct. (Id. at ¶¶ 18-19). Following a plea hearing, Magistrate Judge David Cayer determined that Petitioner's guilty plea was knowingly and voluntarily entered and accepted the plea. (Id., Doc. No. 19: Acceptance and Entry of Guilty Plea).

         A probation officer issued a presentence report, finding that Petitioner had at least three qualifying convictions that triggered the ACCA enhancement, and the PSR identified the following ACCA predicates: (1) a 1990 conviction for possession with intent to sell/deliver cocaine; (2) a 1990 North Carolina conviction for possession with intent to sell/deliver a controlled substance; (3) a 1994 conviction for assault with a deadly weapon inflicting serious injury;[1] and (4) two counts of robbery with a dangerous weapon. (Id., Doc. No. 24 at ¶¶ 24, 32, 33, 35, 39, 40). Allowing a three-level reduction for acceptance of responsibility, Petitioner's total offense level was 31. (Id. at ¶¶ 25-27).

         Petitioner had a criminal history category of V, even without application of the armed career criminal enhancement. (Id. at ¶ 42). Given the 15-year mandatory minimum sentence under the ACCA, Petitioner's guidelines range was 180-210 months of imprisonment. (Id. at ¶ 65). In May 2013, this Court sentenced Petitioner to the mandatory minimum sentence of 180 months of imprisonment. (Id., Doc. No. 30: Judgment).

         Petitioner did not appeal, but filed a motion to vacate in 2014, challenging the four-level enhancement for possession of a firearm during another felony. (Id., Doc. No. 36, Civil No. 3:14cv170). This Court construed this as an ineffective assistance claim and dismissed the motion to vacate for failure to state a claim. (Id., Doc. No. 37). Through counsel, Petitioner filed the pending motion to vacate in May 2016. (Civ. Doc. No. 1). The Fourth Circuit granted his motion for authorization to file a successive Section 2255 motion based on Johnson. (Civ. Doc. No. 1-1).

         In support of his motion to vacate, Petitioner contends that he no longer qualifies as an armed career criminal because, in light of Johnson, he has no more than two prior convictions that qualify as predicates under the ACCA, and his 180-month sentence exceeds the 10-year statutory maximum and violates due process of law. Specifically, Petitioner contends that his conviction for assault with a deadly weapon does not qualify as a “violent felony” under Johnson because it does not satisfy the force clause of Section 924(e)(2)(B)(i). Petitioner further contends that, under Simmons and Newbold, his two prior drug convictions, which had a presumptive term of three years with no aggravating factors, do not qualify as “serious drug offenses” under the ACCA. Petitioner contends that he has no more than two prior convictions that qualify as ACCA predicates. Petitioner does not challenge his two prior convictions for robbery with a dangerous weapon. (Civ. Doc. No. 1 at 7-9).

         This case was held in abeyance pending the Fourth Circuit's decision in United States v. Thompson, 874 F.3d 412 (4th Cir. 2017) (holding that a prior North Carolina conviction for assault inflicting serious bodily injury constituted a “crime of violence” under the residual clause of Section 4B1.2 of the United States Sentencing Guidelines). On December 26, 2017, following the decision in Thompson, the Government filed the pending motion to dismiss. (Doc. No. 7). On December 27, 2017, the Government filed the pending motion to amend/correct the pending motion to dismiss, (Doc. No. 8), along with an amended motion to dismiss, (Doc. No. 9). On March 12, 2018, Petitioner filed his response, (Doc. No. 14), and on March 27, 2018, the Government filed its Reply. (Doc. No. 17). Finally, on April 12, 2018, Petitioner filed a Notice of Supplemental Authority. (Doc. No. 18). This matter is ripe for disposition.

         II. STANDARD OF REVIEW

         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 argument 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

         A. The ACCA, Johnson, Simmons, and Newbold

         As noted, Petitioner contends that, under Johnson, Simmons, and Newbold, he no longer has three predicate felonies subjecting him to a 15-year mandatory minimum sentence under the ACCA. This Court, therefore, first sets forth ...


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