United States District Court, W.D. North Carolina, Charlotte Division
COGBURN 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. 1]. Also pending is
Petitioner's Motion to Amend/Correct Petitioner's
Motion to Vacate. [Doc. 21]. Petitioner is represented by
Noell Tin of the law firm of Tin Fulton Walker & Owen,
Petitioner's offense conduct
1992 and 1995, Petitioner participated in a conspiracy to
possess with intent to distribute powder and crack cocaine in
the Charlotte area. [Doc. 11 at ¶ 8: PSR]. The
conspiracy was responsible for the distribution of more than
19 kilograms of crack cocaine, and members of the conspiracy,
including Petitioner, regularly carried firearms during drug
transactions. [Id. at ¶¶ 8-10].
Additionally, members of the conspiracy obtained some of the
powder and crack cocaine they distributed by robbing other
drug dealers. [Id. at ¶¶ 8, 12].
Petitioner's conviction and sentence
was indicted by the grand jury and charged with conspiracy to
possess with intent to distribute powder and crack cocaine
within 1, 000 feet of a protected area, in violation of 21
U.S.C. §§ 841(a)(1), 846, and 860. [Criminal No.
3:95-cr-00031-MOC-1,  CR Docs. 1, 8: Indictment]. Petitioner was
convicted of the conspiracy offense after a jury trial. [CR
Doc. 190: Jury Verdict]. The probation officer prepared a
Presentence Report and began with a base offense level of 38
based on Petitioner's responsibility for more than 1.5
kilograms of crack cocaine. [Doc. 11 at ¶ 19]. The
probation officer recommended a two-level enhancement based
on Petitioner's possession of a firearm during the
drug-trafficking conspiracy, a three-level enhancement based
on Petitioner's role as manager or supervisor in the
conspiracy, and a two-level enhancement because Petitioner
was responsible for the distribution of cocaine within 1, 000
feet of playgrounds and schools, resulting in an adjusted
offense level of 45. [Id. at ¶¶ 20, 22,
24, 25]. Based on Petitioner's two prior convictions for
assault on a female, the probation officer concluded that
Petitioner was a career offender under Sentencing Guidelines
§ 4B1.1. [Id. at ¶ 28]. However, because
application of the career-offender guideline resulted in an
adjusted offense level of 37, below the otherwise-applicable
adjusted offense level of 45, the probation officer
calculated a total offense level of 45. [Id. at
¶¶ 28-29]. This offense level was automatically
reduced to a level of 43, which resulted in a Sentencing
Guidelines term of life in prison. [Id. at ¶
64]. Adopting the PSR, this Court sentenced Petitioner to
life in prison. [CR Doc. 217: Judgment].
Petitioner's post-conviction background
appealed, and the Fourth Circuit affirmed this Court's
judgment. United States v. Sampson, 140 F.3d 585
(4th Cir. 1998). On April 5, 1999, Petitioner filed his
first motion to vacate under 28 U.S.C. § 2255. [Civil
No. 3:99-cv-127, Doc. 1]. This Court dismissed
Petitioner's motion on the merits with prejudice on July
25, 2001. [Id., Doc. 21]. On April 17, 2009,
Petitioner filed a motion for a reduced sentence under 18
U.S.C. § 3582(c)(2) and Amendment 706 to the United
States Sentencing Guidelines. [CR Doc. 308]. This Court
determined that a two-level reduction in Petitioner's
total offense level based on Amendment 706 would result in a
total offense level of 42. [Id. at 318]. Based on
this determination, this Court granted Petitioner's
§ 3582(c)(2) motion, reducing Sampson's sentence to
360 months in prison. [Id. at 318]. On October 5,
2012, this Court denied Petitioner's motion for a
sentence reduction based on Amendment 750 to the United
States Sentencing Guidelines. [Id. at 368].
15, 2015, a North Carolina state-court judge granted
Petitioner's motion for appropriate relief and vacated
one of his two prior convictions for assault on a female.
[Doc. 1 at 14-16]. Two weeks later, Petitioner filed the
pending motion to vacate, arguing that he was improperly
designated a career offender and seeking relief from his
sentence. [Doc. 1].
August 17, 2015, the probation office submitted a
Supplemental Presentence Report addressing Petitioner's
eligibility for a sentence reduction under § 3582(c)(2)
based on Amendment 782 to the United States Sentencing
Guidelines. [CR Doc. 393]. The probation office noted in its
Supplemental PSR that Sampson's total offense level, even
with the reduction, was a level 38, below the level 37 that
applied based on his career-offender designation.
[Id.]. One month later, on September 18, 2015, this
Court denied Petitioner a reduction based on Amendment 782.
[Id. at 401].
November 18, 2015, the Government filed a response in
opposition to Petitioner's motion to vacate and a motion
to dismiss this action. [Doc. 7]. On December 23, 2015,
Petitioner filed a Reply to the Government's response,
asserting for the first time that he was improperly
classified as a career offender because North Carolina's
offense of assault on a female does not qualify as a
“crime of violence” under Sentencing Guidelines
§ 4B1.2 and that he did not otherwise have two prior
convictions for a crime of violence or controlled substance
offense. [Doc. 10 at 11-13; see also U.S.S.G. §
4B1.1 (defining a career offender as a defendant who has
“at least two prior felony convictions of either a
crime of violence or a controlled substance offense”)].
To support this argument, Petitioner relied on the Fourth
Circuit's decision in United States v. Vinson,
805 F.3d 120 (4th Cir. 2015). [Doc. 10 at 1]. Petitioner also
sought to add an alternative claim for relief under 28 U.S.C.
§ 2241. [Id. at 13]. This Court permitted the
amended claims. [Doc. 12]. The Government filed a response in
opposition to Petitioner's amended claims, arguing that
they were procedurally defaulted, not cognizable under 28
U.S.C. § 2255, and failed as a matter of law under
§ 2241. [Doc. 13].
months after the Government filed its response, this Court
ordered Petitioner to supplement his amended reply to the
Government's response to his motion to vacate and ordered
the United States to file a surreply. Seven months later,
Petitioner filed an amended reply and a motion to further
amend his motion to vacate. [Docs. 21, 22]. For the first
time, Petitioner asserted a claim that his sentence was
imposed in violation of the Due Process Clause, pursuant to
the Supreme Court's holding in Johnson v. United
States, 135 S.Ct. 2551 (2015), in which the Court held
that the residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague. [See id.]. The Government
filed a response and surreply. On May 11, 2017, this Court
stayed this action pending the Fourth Circuit's decision
in United States v. Brown. [Doc. 24]. On March 12,
2018, Petitioner filed a supplemental memorandum, conceding
that Brown forecloses his Johnson claim.
[Doc. 25]. On November 30, 2018, the Court stayed this action
pending resolution of the Government petitioner for
certiorari to the Supreme Court in United States v.
Wheeler, 734 Fed.Appx. 892 (4th Cir. 2018). [Doc. 29].
In March 2019, the Supreme Court denied certiorari in
Wheeler. Thereafter, on April 5, 2019, the stay was
lifted on Petitioner's motion to lift stay and for order
granting relief under Wheeler. The parties responded
and replied, respectively [Docs. 34, 36], and the matter is
now ripe for disposition.