United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION AND ORDER
D. Whitney, Chief United States District Judge.
MATTER is before the Court on Petitioner's
Petition for Relief under 28 U.S.C. § 2241 [Doc. 1], the
Supplement to Petitioner's Pro Se Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2241 [Doc. 44],
and the Government's Response to the petition. [Doc. 51].
Petitioner is represented by Ann Hester of the Federal
Defenders of Western North Carolina.
October of 2007, Petitioner Chavius Marquette Barber
(“Petitioner”) pleaded guilty to conspiracy to
possess with intent to distribute powder and crack cocaine,
marijuana, and ecstasy, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Criminal No. 3:07-cr-61
(“CR”), Docs. 2, 197, & 216. Petitioner
participated in a drug-trafficking conspiracy as a member of
the Hidden Valley Kings street gang in Charlotte, North
Carolina. [CR Doc. 347 ¶¶ 8, 13-16]. The United
States notified Petitioner, in accordance with 21 U.S.C.
§ 851, that it intended to seek an enhanced penalty
based on Petitioner's prior conviction for felony
possession of cocaine in the Superior Court of Mecklenburg
County, North Carolina. [CR Doc. 24 at 2].
to sentencing, the probation officer completed a Presentence
Report (“PSR”), in which the probation officer
calculated a preliminary Sentencing Guideline range of
imprisonment of between 235 and 293 months in prison. This
range was based on a total offense level of 35 and a
criminal-history category of IV. [CR Doc. 347, ¶ 82].
The probation officer also noted that Petitioner was subject
to a statutory mandatory-minimum sentence of 240 months in
prison because he had previously been convicted of a felony
drug offence. [Id.at ¶ 81]. This Court
sentenced Petitioner to 240 months in prison, the term
required by 21 U.S.C. § 841(b)(1)(A), based on
Petitioner's prior conviction of a felony drug offence.
[CR Doc. 390 at 2].
appealed, and the Fourth Circuit affirmed this Court's
judgment. United States v. Barber, 387 Fed.Appx. 374
(4th Cir. 2010). In May 2011, Petitioner filed a Section 2255
motion to vacate, set aside or correct sentence, which this
Court denied. Civil No. 3:11-cv-243, Doc. I, 2. Two years
later, Petitioner filed a habeas petition for relief from his
20-year sentence under 28 U.S.C. § 2241 in the District
of South Carolina, which was transferred to this Court. [Doc.
1]. The case has been held in abeyance awaiting the decision
of the United States Supreme Court in United States v.
Wheeler, No. 16-6073. On May 31, 2019, after
Wheeler was decided and the stay lifted, and after
an extension of time to respond, the Government responded to
the petition, agreeing with Petitioner that the Court should
grant Petitioner's § 2241 petition, that
Petitioner's sentence should be vacated, and that a
resentencing hearing should be scheduled. [Doc. 51].
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, and because the
Government concedes that Petitioner is entitled to relief,
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).
2255 is generally the proper means of collaterally attacking
the validity of a federal conviction or sentence. In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). By
contrast, Section 2241 is a means of attacking the way a
sentence is executed. Tolliver v. Dobre, 211 F.3d
876, 877 (5th Cir. 2000). The Fourth Circuit recognized in
In re Jones, 226 F.3d 328 (4th Cir. 2000), however,
that where Section 2255 is inadequate or ineffective to test
the legal validity of a petitioner's conviction, the
“savings clause” of Section 2255 permits a
petitioner to seek relief under Section 2241. In re
Jones, 226 F.3d at 333. While the savings clause can be
invoked to permit Section 2241 relief where Section 2255 is
inadequate or ineffective, it only applies to permit such
relief, when (1) at the time of conviction, settled law of
the Fourth Circuit or the Supreme Court established the
legality of the conviction; (2) subsequent to the
prisoner's direct appeal and first Section 2255 motion,
the substantive law changed such that the conduct of which
the prisoner was convicted is deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provisions of
Section 2255 because the new rule is not one of
constitutional law. Rice v. Rivera, 617 F.3d 802,
807 (4th Cir. 2010). Here, the parties and the Court agree
that Petitioner properly seeks relief under Section 2241.
21, section 851 provides for enhanced sentences based on any
prior “felony drug offense.” Section 802(44)
defines that term as “an offense that is punishable by
imprisonment for more than one year under [any state or
federal law relating to narcotics or marijuana].” In
Simmons, the Fourth Circuit held that an offense
qualifies as a “felony drug offense” for purposes
of § 841(b)(1), and is punishable by more than one year
in prison, only if the defendant could have received a
sentence of more than one year in prison, overturning its
earlier decisions in United States v.
Jones, 195 F.3d 205 (4th Cir. 1999), and United
States v. Harp, 406 F.3d 242 (4th Cir. 2005). In
Jones and Harp, the Fourth Circuit had held
that offense is punishable by more than one year in prison if
any defendant could receive a term of imprisonment
of more than one year upon conviction for that offense.
See Simmons, 649 F.3d at 247. In Simmons,
the Fourth Circuit held that, for a prior felony conviction
to serve as a predicate offense, the individual defendant
must have been convicted of an offense for which that
defendant could be sentenced to a term exceeding one
year. Simmons, 649 F.3d at 243.
the Court enhanced Petitioner's sentence based on his
prior conviction for felony possession of cocaine. The
highest sentence Petitioner could have received for this
prior conviction under North Carolina's Structured
Sentencing Act was 8 months in prison. Petitioner could
not have received a sentence of more than one year.
N.C. Gen. Stat. § 15A-1340.17(c) and (d). As such,
although Jones and Harp were good law at
the time of this Court sentenced Petitioner, Simmons
decided that Petitioner's prior conviction was not a
“felony drug offense” for purposes of 21 U.S.C.
§ 841(b)(1) because it was not punishable by more than
one year in prison.
Government also concedes that Petitioner is entitled to
relief from his sentence under § 2241 because of the
erroneous application of a mandatory minimum. In United
States v. Wheeler, the Fourth Circuit held that a
defendant (1) whose sentence was affected by application of a
mandatory-minimum term of imprisonment that Simmons
later held should not have applied and (2) whose motion to
vacate would be a second or successive motion to vacate may
obtain sentencing relief under § 2241. 886 F.3d 415,
429, 433-34 (4th Cir. 2018). Petitioner was subject to a
statutory mandatory minimum of 20 years in prison based on a
prior conviction that no longer constitutes a “felony
drug offense” and cannot support an enhancement under
21 U.S.C. § 841(b)(1)(A). Without the prior
“felony drug offense” conviction, Petitioner
would have been subject to a statutory mandatory-minimum term
of 10 years in prison for his drug-trafficking conspiracy
offense. As such, Petitioner is entitled to sentencing relief
Petitioner is entitled to relief under Section 2241, the
Court will grant the Section 2241 petition and vacate
Petitioner's conviction under 21 U.S.C. §§ 841,
846. The Court will also, therefore, schedule a resentencing
hearing so ...