United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255, (Doc. No. 1), that alternatively seeks relief
pursuant to 28 U.S.C. § 2241. Also pending is
Respondent's Motion for Extension of Time, (Doc. No. 10),
in which to file a Response to Petitioner's request for
§ 2241 relief.
was indicted in the underlying criminal case for: Count (1),
unlawful possession of a firearm and/or ammunition by a
convicted felon (18 U.S.C. §§ 922(g)(1), 924(e));
Count (2) knowingly and intentionally possessing with intent
to distribute marijuana (21 U.S.C. §§ 841(a)(1),
841(b)(1)(D)); and Count (3), possession of a firearm during
and in relation to a drug trafficking crime (18 U.S.C. §
924(c)(1)). (3:08-cr-217, Doc. No. 3). Petitioner pled guilty
to Counts (1) and (2). See (Id., Doc. Nos.
Presentence Investigation Report (“PSR”) scored
the base offense as 24 for a violation of 18 U.S.C. §
922(g). (Id., Doc. No. 22 at ¶ 15). Four levels
were added because Petitioner used or possessed the firearm
and/or ammunition in connection with another felony offense.
(Id., Doc. No. 22 at ¶ 16). However, Petitioner
was found to qualify for enhanced sentencing under the Armed
Career Criminal Act (“ACCA”) pursuant to 18
U.S.C. § 924(e) and a career offender pursuant to U.S.
Sentencing Guidelines § 4B1.4 based on prior convictions
in North Carolina Superior Court: sale of cocaine
(88CRS35216-01); sale and delivery of cocaine (98CRS37296,
37298, 37300, 37302); breaking and/or entering (04CRS235232);
and in South Carolina General Sessions Court for:
second-degree burglary (04-GS-13-1921). (Id., Doc.
No. 22 at ¶ 22). Petitioner's offense level as an
armed career criminal and career offender was 34.
(Id., Doc. No. 22 at ¶¶ 22, 29). Three
levels were deducted for acceptance of responsibility
resulting in a total offense level of 31. (Id., Doc.
No. 22 at ¶¶ 31, 32). The PSR's criminal
history section scored 14 criminal history points and a
criminal history category of VI. (Id., Doc. No. 22
at ¶¶ 61, 62). The criminal history category for
armed career criminals and career offenders is also VI.
(Id., Doc. No. 22 at ¶ 63). Based on
Petitioner's ACCA enhancement, his statutory minimum
sentence was 15 years and the maximum was life.
(Id., Doc. No. 22 at ¶ 100). Based on a total
offense level of 31 and a criminal history category of VI,
the guidelines range was calculated to be 188 to 235
months' imprisonment, and supervised release of at least
three years but not more than five years for Count (1) and
not less than two years for Count (2). (Id., Doc.
No. 22 at ¶¶ 103, 104).
Court adopted the PSR and only amended it with regards to the
dates that Petitioner spent in state custody on related
charges. See (Id., Doc. No. 26). The Court
sentenced Petitioner in a judgment docketed on November 11,
2009 to the minimum advisory Guideline sentence of 188
months' imprisonment for Count (1) and 60 months'
imprisonment for Count (2), concurrent, followed by a total
of five years of supervised release. (Id., Doc. No.
25). Petitioner did not appeal.
filed a pro se § 2255 Motion to Vacate on
October 29, 2010, arguing that counsel provided ineffective
assistance and that the indictment was defective, case number
3:10-cv-567. See (3:08-cr-217, Doc. No. 30). The
Court denied relief on the merits on March 27, 2014.
(Id., Doc. No. 37). The Fourth Circuit Court of
Appeals denied a certificate of appealability and dismissed
Petitioner's appeal. United States v. Sanders,
577 Fed.Appx. 160 (4th Cir. 2014).
filed the instant petition through counsel on June 24, 2016
seeking relief under § 2255 and alternatively §
2241,  arguing that his sentence for Count (1)
exceeds the statutory maximum for that offense because he
does not qualify as an armed career criminal. Specifically,
Petitioner argues that his South Carolina burglary conviction
is not a predicate felony pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015), and that his North
Carolina drug convictions are not predicates under United
States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc). Therefore, Petitioner concludes, he
does not have three or more qualifying predicate offenses and
his 188-month sentence exceeds the applicable 10-years
statutory maximum. He seeks resentencing pursuant to the
non-enhanced guideline range of 110 to 137 months'
proceedings were stayed pending United States v.
Wheeler. See (Doc. No. 7), and Wheeler
is now final. Id., 886 F.3d 415 (4th Cir.
2018), cert. denied 139 S.Ct. 1318 (2019).
has filed a Supplemental Memorandum in Support of 2241
Motion, (Doc. No. 9), arguing that Petitioner is entitled to
relief under Wheeler and Simmons.
Petitioner argues that his three North Carolina drug
convictions do not qualify as ACCA predicates because they do
not carry a maximum term of imprisonment of 10 years or more.
The state court judgments reveal that the presumptive
sentence for each offense was less than 10 years and the
state court did not find any aggravating factors. Therefore,
three of Petitioner's five predicates do not qualify
under Simmons and he is entitled to § 2241
relief under Wheeler for a statutory sentencing
United States has filed a Response conceding that
Petitioner's Simmons claim should be granted
pursuant to § 2241 and Wheeler, and that
Petitioner should be resentenced on Count (1) because he does
not qualify as an armed career criminal. (Doc. No. 11).
2255 is inadequate and ineffective to test the legality of a
sentence under the “savings clause” when: (1) at
the time of sentencing, settled law of this circuit or the
Supreme Court established the legality of the sentence; (2)
subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect. 28 U.S.C. § 2255(e);
United States v. Wheeler, 886 F.3d 415, 429
(4th Cir. 2018), cert. denied, 139 S.Ct.
previously filed a § 2255 Motion to Vacate that was
denied on the merits, the Fourth Circuit denied permission to
file a second or successive petition under § 2255(h),
and Petitioner is alleging that he is entitled to relief
under a retroactive change in the law because his sentence
exceeds the statutory maximum. Section 2255 is therefore
inadequate or ineffective to address the alleged fundamental
sentencing error and that error is thus cognizable under the
§ 2241 pursuant to § 2255(e)'s savings ...