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Wilmoth v. United States

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

April 22, 2019

ABBY WILMOTH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MAX O. COGBUM JR. UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on review of Petitioner's Amended 28 U.S.C. § 2255 Motion to Vacate, (Doc. No. 3).

         I. BACKGROUND

         Petitioner was indicted in the underlying criminal case for: Count (1), conspiracy to distribute, possess with intent to distribute, and manufacture methamphetamine (21 U.S.C. §§ 846, 841(b)(1)(A)); Count (2), possession and distribution of pseudoephedrine (21 U.S.C. §§ 841(c)(2), 802(34)(K)); Counts (10), (12) and (15), possession of materials to make methamphetamine (21 U.S.C. § 843(a)(6), (d)(2), 18 U.S.C. § 2); and Counts (11), (13) and (14), maintaining premises for manufacturing and distributing methamphetamine (21 U.S.C. § 856(a)(1), 18 U.S.C. § 2). (5:13-cr-53, Doc. No. 3). Petitioner entered a straight-up guilty plea to all counts on April 15, 2014. See (5:13-cr-53, Doc. No. 205).

         The PSR notes that Count (1) carries a 120-month minimum mandatory sentence. See 21 U.S.C. §§ 846, 841(b)(1)(A); (5:13-cr-53, Doc. No. 336). The base offense level for Count (1) was 30 because the amount of methamphetamine was at least 50 grams but less than 150 grams. (5:13-cr-53, Doc. No. 336 at ¶ 30). Two levels were added because a dangerous weapon was possessed. (Id. at ¶ 21). Three more levels were added pursuant to U.S. Sentencing Guidelines Section 2D1.1(b)(13)(C)(ii) because “the offense involved the manufacture of methamphetamine and the offense created a substantial risk of harm to (I) human life other than a life described in subdivision (D); or (II) the environment.” (Id. at ¶ 22). The adjusted offense level subtotal for Count (1) was therefore 35. (Id. at ¶ 26). The base offense level for Count (2) was 30 because the offense involved at least 100 grams, but less than 300 grams of pseudoephedrine. (Id. at ¶ 27). Two levels were added because a dangerous weapon was involved and two more levels were added because the offense involved the unlawful discharge of a hazardous or toxic substance or the unlawful transportation, treatment, storage, or disposal of hazardous waste. (Id. at ¶ 28-29). The adjusted offense level subtotal for Count (2) was therefore 35. Counts (10), (12), and (15) were grouped. The base offense level for those counts was 12 because Petitioner intended to manufacture a controlled substance or knew the prohibited equipment, product, or material was to be used to manufacture a controlled substance. (Id. at ¶ 36). Two levels were added because the offense involved an unlawful discharge of a hazardous or toxic substance or the unlawful transportation, treatment, storage, or disposal of hazardous waste. (Id. at ¶ 37-38). The adjusted total offense level subtotal for those counts was therefore 35. (Id. at ¶ 43). Counts (11), (13), and (14) were grouped. The base offense level was 35 because that is the offense level applicable to the underlying controlled substance offense. (Id. at ¶ 35). The highest adjusted offense level subtotal for those counts is 35. (Id. at ¶ 50). The highest offense level applicable to the group is 35, and three levels were deducted for acceptance of responsibility, and the total offense level was therefore 32. (Id. at ¶¶ 51, 53-55). No Chapter Four enhancements were applied. (Id. at ¶ 52).

         The PSR's criminal history section scored the following priors: case number 10CR53423 for common law forgery, exceeding pseudoephedrine limits, and failure to pay; case number 11CR643 for larceny; case number 11CRS52992, -93, and -96 for possession of a counterfeit instrument; and 13CR50785, -86, -87, -90, -91, -93, and -96 for breaking and entering, larceny, conspiracy to break and enter, first degree trespass, and injury to personal property. (Id. at ¶¶ 69-72). This resulted in four criminal history points, and two more points were added for committing the instant offense while under a criminal justice sentence. (Id. at 73-74). The total criminal history score was therefore six and the criminal history category was III. (Id. ¶ 105). This resulted in an advisory guideline range of 151 to 188 months' imprisonment. (5:13-cr-53, Doc. No. 336, ¶ 105).

         The Court sustained Petitioner's PSR objections to the enhancement for a firearm which resulted in a revised total offense level of 30, the criminal history category remained III, and the revised advisory range became 121 to 151 months' imprisonment. See (Id., Doc. No. 371). The Court imposed a sentence below the advisory range of 120 months' imprisonment for each count, concurrent, which is the statutory minimum sentence for Count (1). (Id., Doc. No. 370); see (Id., Doc. No. 371).

         Appellate counsel filed a memorandum brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there were no meritorious grounds for appeal but questioning the validity of Petitioner's guilty plea and the reasonableness of her sentence. Petitioner did not file a supplemental pro se appellate brief. However, the Fourth Circuit directed supplemental briefing on whether the Court properly applied a sentencing enhancement for creating a substantial risk of harm.

         On August 29, 2016 the Fourth Circuit affirmed, finding that the guilty plea was knowing, voluntary, and supported by a sufficient factual basis; that any error regarding the sentencing enhancement was harmless in light of the Court's imposition of the minimum mandatory sentence of 120 months' imprisonment; and that Petitioner failed to overcome the presumption that her downward variant sentence was presumptively reasonable. The Fourth Circuit also reviewed the entire record in accordance with Anders and found no meritorious issues for appeal. United States v. Wilmoth, 668 Fed.Appx. 455 (4th Cir. 2016).

         Petitioner's filed a petition pursuant to 28 U.S.C. § 2241 in the U.S. District Court for the District of Minnesota in which she attempted to attack the underlying criminal case pursuant to the savings clause, case number 0:18-cv-2504. See 28 U.S.C. § 2255(e). The Minnesota court dismissed the § 2241 petition without prejudice for lack of jurisdiction, in part, because Petitioner never sought relief pursuant to § 2255. The Minnesota District Court also transferred Petitioner's § 2255 Motion to Vacate, which Petitioner filed on November 14, 2018, to this Court where it was opened as the instant civil action. See Wilmoth v. Barnes, 2019 WL 135703 (D. Minn. Jan. 8, 2019); (Doc. No. 1-1).

         On initial review, this Court found that the § 2255 Motion to Vacate was too vague and conclusory to proceed and ordered Petitioner to file an Amended § 2255 Motion to Vacate. (Doc. No. 2). Petitioner was specifically instructed to address timeliness and was cautioned that her failure to do so would probably result in this case's dismissal as time-barred. (Doc. No. 2 at 3).

         Petitioner filed the instant Amended § 2255 Motion to Vacate on February 15, 2019. (Doc. No. 3). Petitioner has raised a single claim entitled “Violation of Constitutional Right - Amendment V Due Process 2255(f)(3).” (Doc. No. 3 at 4). She argues verbatim:

Defendant makes claim to the Supreme Court decision in “Sessions v. Dimaya” 138 S.Ct. 1204 (2018). This decision found that the ambiguous language in a “crime of violence” has been declared unconstitutionally vague. Defendant is convicted of “manufacturing” methamphetamine. This act is a “crime of violence” due to the ...

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