United States District Court, W.D. North Carolina, Statesville Division
Cogburn Jr., United States District Judge.
MATTER is before the Court on Petitioner's
Amended Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. § 2255, (Doc. No. 7). Also pending are the
Respondent's Motion to Dismiss, (Doc. No. 9),
Petitioner's Motion to Strike, (Doc. No. 15), and
Petitioner's Motion for Summary Judgment, (Doc. No. 24).
underlying criminal case, Petitioner pled guilty straight up
to a single count of being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1).
See (5:13-cr-65, Doc. No. 44).
Probation Office issued the original Presentence
Investigation Report (“PSR”) calculated
Petitioner's offense level as 25 and criminal history
category of IV, with a guidelines range of 84 to 105
months' imprisonment and between one and three years of
supervised release without any Chapter Four enhancements.
(Id., Doc. No. 21).
Government filed objections arguing that Petitioner qualifies
for enhanced sentencing under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), because he has
three or more prior violent felony convictions that were
committed on different occasions. (Id., Doc. No.
counsel objected to the ACCA designation, arguing that he had
only two separate prior violent felony convictions that were
committed on different occasions because the geographic
location, date of the offense, time of the offense, and
nature of the crime were all the same for two of the three
convictions. (Id., Doc. No. 23).
final PSR included the ACCA enhancement. It concluded that
Petitioner qualifies as an armed career criminal because the
offense of conviction is a violation of § 922(g) and he
has at least three prior convictions for a violent felony or
serious drug offense, or both, that were committed on
different occasions, i.e., second-degree burglary
convictions in North Carolina cases 11CRS51150,
11CRS51151, and 11CRS50296.
(Id., Doc. No. 24 at ¶ 26). Three levels were
deducted for acceptance of responsibility resulting in a
total offense level of 31. (Id., Doc. No. 24 at
¶¶ 27-29). The PSR's criminal history section
scored seven criminal history points and two more points were
added because Petitioner committed the instant offense while
under a criminal justice sentence. (Id., Doc. No. 24
at ¶¶ 50, 51). This resulted in a total of nine
criminal history points and a criminal history category of
IV, however, the criminal history category for career
offenders is VI. (Id., Doc. No. 24 at ¶ 52).
The resulting minimum mandatory sentence was 15 years'
imprisonment, and the guidelines range was 188 months to 235
months' imprisonment followed by between two and five
years of supervised release. (Id., Doc. No. 24 at
¶¶ 89, 92).
filed a pro se letter objecting to the final PSR
arguing that the three burglary convictions arose out of only
two distinct criminal episodes, because two of them occurred
“simultaneously” on December 31, 2009, and that
Petitioner had co-defendants for those cases whereas the
cases cited by the United States involved only a single
defendant which would have made simultaneous offenses by
co-defendants impossible. (Id., Doc. No. 26 at 3).
counsel filed a Sentencing Memorandum and Supplemental
Objections to the PSR on Petitioner's behalf.
(Id., Doc. No. 27). Counsel argued that the
Government could not sustain its burden of proof that the
ACCA enhancement requires because the
Shepard-approveddocuments do not conclusively
demonstrate that Petitioner himself committed the two
second-degree burglaries on December 31, 2009, on occasions
different from one another “especially since at least
two (2) co-defendants were involved.” (Id.,
Doc. No. 27 at 2).
sentencing hearing on November 3, 2014, Petitioner stated
that he was fully satisfied with the services of his attorney
and had pleaded guilty freely and voluntarily. (Id.,
Doc. No. 45 at 2-3). In arguing that the two December 31,
2009 offenses should be counted as a single conviction,
defense counsel argued:
I did go to Statesville Superior Court. I wasn't able to
pull - they couldn't locate the codefendants. One of the
codefendant[s] was a Mr. Patrick Gardner. But I was able to
make a copy of the restitution sheet from Mr. Linney's
file. And it indicates that … the codefendant is a Mr.
Unfortunately, they were not able to locate the file for me.
But I have shown the government a copy of the restitution
worksheet indicating there are codefendants involved….
[E]even though the indictment is not clear, it appears
Iredell County, when they bring indictments against
codefendants, everybody appears to be charged as a principal.
(Id., Doc. No. 45 at 13).
Government argued that the certified North Carolina judgments
show that the two December 31 burglaries should count as
separate offenses because they each had a different victim
and they occurred at different locations, and the facts that
they were close in time and geographically close does not
disqualify them from being separate and distinct criminal
episodes. The only issue, the Government argued, was whether
there were possible codefendants and that, to do so would
require the Court to go beyond the Shepard-approved
documents and look at the restitution sheet that refers to
joint and several restitution; “as far as we know from
the Shepard-approved documents, it could be a typo, it could
be an oversight, it could be an order of joint and several
liability with regard to restitution in another case that he
was previously sentenced for.” (Id., Doc. No.
45 at 18-19).
Court found that “It does not appear that these were
simultaneous offenses, but rather were sequential, as would
be expected on burglary victim houses, albeit located near
one another;” overruled defense objection and sentenced
as ACCA. (Id., Doc. No. 45 at 21). The Court
specifically found that the restitution pages' reference
to joint and several liability “do not rise to the
level of preponderance of the evidence in undermining the
otherwise pertinent facts about the two offenses in
question….” (Id., Doc. No. 45 at 23).
Court therefore adopted the PSR including the ACCA
enhancement and sentenced Petitioner at the top of the
guidelines to 235 months' imprisonment followed by 5
years of supervised release. (Id., Doc. No. 29).
issue on direct appeal was “whether two burglaries that
served as part of the predicate for [Petitioner's] Armed
Career Criminal Act … sentencing enhancement occurred
on different occasions.” United States v.
Linney, 819 F.3d 747 (4th Cir. 2016). This
Court found that the ...