United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United States District Judge.
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.
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.
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
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).
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).
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; 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).
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).
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.
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).
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.
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 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).
The ACCA, Johnson, Simmons, and
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 ...