United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
Motion to Vacate, pursuant to 28 U.S.C. § 2255 [Doc. 1].
Petitioner is represented by Joshua Carpenter of the Federal
Defenders of Western North Carolina.
seeks relief from his 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).
December 1, 2006, Petitioner pled guilty, pursuant to a
written plea agreement, to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g) and one count of conspiring to steal firearms in
violation of 18 U.S.C. §§ 922(j), 924(1), and 371.
[Crim. No. 2:06-cr-26-MR-1 (“CR”), Doc. 45:
Amended Plea Agreement].
19, 2007, this Court sentenced Petitioner to a total term of
imprisonment of 156 months, after granting a downward
departure from the statutory minimum sentence of 15 years
under the Armed Career Criminal Act. [CR Docs. 60, 61].
Petitioner did not appeal. In July 2008, he filed his first
motion under 28 U.S.C. § 2255, contending, among other
things, that this Court erroneously applied the Armed Career
Criminal Act to his sentence. [CR Doc. 64]. This Court denied
and dismissed that motion. [CR Doc. 65].
3, 2016, the Court of Appeals for the Fourth Circuit
authorized Petitioner to file a successive motion under 28
U.S.C. § 2255 to raise his Johnson claim. [CR
Doc. 69]. Petitioner filed the pending motion to vacate on
May 3, 2016, seeking sentencing relief under
Johnson. On November 14, 2016, this Court stayed
this action pending a decision by the Fourth Circuit in
United States v. Burns-Johnson, No. 16-4338, and
United States v. Thompson, No. 15-4685. The
Fourth Circuit issued its decisions in each of these cases in
July 2017 and October 2017, respectively.
completed his custodial sentence, was released from the
Bureau of Prisons custody, and began serving a three-year
supervised release sentence on September 7, 2018. While on
supervised release, he was charged with violating the terms
of his supervised release. [CR Doc. 70: Probation Petition].
On March 4, 2019, this Court revoked Petitioner's
supervised release and sentenced him to nine months of
imprisonment. [CR Doc. 78: Judgment]. The Judgment states
that the nine-month sentence is to “run consecutive to
any undischarged term of imprisonment heretofore or hereafter
imposed by any state or federal court, particularly including
any sentence imposed with regard to the new law violation as
set out in Violation 3 of the Petition in this matter.”
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
pending motion to vacate seeks sentencing relief from his
original sentence of 156 months. He has not challenged his
underlying conviction. Rather, he is challenging only the
applicability of a 15-year mandatory minimum sentence under
the ACCA. He has already served his custodial sentence for
the underlying conviction in this matter. He is currently
serving a new sentence based on the revocation of his
supervised release. As such, both the custodial portion and
the supervised release portion of his original sentence have
ended. Moreover, the advisory Guidelines range for his
current custodial sentence on revocation was 8 to 14 months,
regardless of the issue presented here, as his violation was
a Grade C violation. His motion to vacate is, therefore, moot
and will be dismissed. Accord Morgan v. United
States, No. 5:15-CR-68, 2018 WL 4264600, at *5 (N.D.
W.Va. Sept. 6, 2018) (dismissing motion to vacate challenging
the length of original custodial sentence where petitioner
was in custody pending a final supervised release revocation
these reasons, the Court dismisses Petitioner's motion to
vacate as moot.