United States District Court, W.D. North Carolina, Statesville Division
COGBURN JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court on review of
Petitioner's Amended 28 U.S.C. § 2255 Motion to
Vacate, (Doc. No. 3).
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).
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
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).
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).
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.
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.
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).
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).
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 ...