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James v. United States

United States District Court, W.D. North Carolina

September 9, 2019

AVERY SHANDEL JAMES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255; Alternative Petition for Relief Under 28 U.S.C. § 2241; Alternative Petition for Writ of Coram Nobis; and Alternative Petition for a Writ of Audita Querela (Doc. No. 3); see also (Doc. No. 16) (Petitioner's Supplement to Motion to Vacate Sentence Under 28 U.S.C. § 2255, Asserting Alternative Petition for Relief Under 28 U.S.C. § 2241).

         I. BACKGROUND

         Petitioner was charged by Superseding Indictment with: Count (1), conspiracy to commit bank robbery (18 U.S.C. § 371); Counts (2) and (3), bank robbery (18 U.S.C. §§ 2113(d) and 2); Count (4) entitled possession and use of a firearm in connection with a crime of violence (18 U.S.C. § 924(c)(1) and 2); Count (5), possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1) and 2); Count (6), possession of a firearm with an obliterated serial number (19 U.S.C. § 922(k)); Count (7), conspiracy to obstruct justice and suborn perjury (18 U.S.C. § 371); and Count (8) obstruction of justice (18 U.S.C. § 1503). (3:05-cr-227, Doc. No. 15). A jury found Petitioner guilty as charged. (Id., Doc. No. 30).

         The Presentence Investigation Report (“PSR”) was calculated under the 2005 U.S. Sentencing Guidelines. (Id., Doc. No. 60). The adjusted offense level for Counts (1)-(3) and (5)-(6) was calculated as 26 for possession of a firearm in connection with the commission of armed bank robbery, which was the higher of the adjusted offense levels. (Id., Doc. No. 60 at ¶¶ 24-55). However, Petitioner was found to qualify as a career offender based on his prior convictions for breaking and/or entering (96CRS3127) and robbery with a dangerous weapon (98CRS915), and he was found to qualify as an armed career criminal based on those priors as well as a conviction breaking and/or entering (96CRS832). (Id., Doc. No. 60 at ¶¶ 56-57). The offense level for those counts was found to be 34. (Id., Doc. No. 60 at ¶¶ 56-57). The career offender guidelines provide that, for multiple counts of conviction per 4B1.1(c)(2), the guideline range is the greater of: (A) the guideline range that results from adding the minimum mandatory consecutive sentence per 924(c) to the minimum and maximum of the otherwise applicable guideline range determined for the count of conviction other than § 924(c), or (B), the range using the table in subsection (c)(3). In this case, the higher range is that set forth in the table in subsection (c)(3), which resulted in a guideline range of 360 months to life. (Id., Doc. No. 60 at ¶ 61). However, because a statutory life sentence was mandated under 18 U.S.C. § 3559 for Count (4), the guideline term of imprisonment was life pursuant to § 5G1.1(c)(2). (Id., Doc. No. 60 at ¶ 62).

         The PSR's criminal history section scored nine criminal history points, and two more points were added because Petitioner was under a term of post-release supervision when the instant offense was committed. (Id., Doc. No. 60 at ¶¶ 73-74). One more point was added because the instant offense was committed less than two years after Petitioner's release from custody for robbery with a dangerous weapon. (Id., Doc. No. 60 at ¶ 75). A total of 12 criminal history points scored a criminal history category of V. However, the criminal history category for career offenders and armed career criminals is VI. (Id., Doc. No. 60 at ¶ 76).

         The resulting guideline range was 360 months to life imprisonment. (Id., Doc. No. 60 at ¶ 95). However, because a mandatory consecutive sentence of life imprisonment is required under §§ 924(c)(1)(A)(ii) and 3559(c)(1) for Count (4), the guideline term of imprisonment was life pursuant to 5G1.1(c)(2). (Id., Doc. No. 60 at ¶ 95). The guidelines called for supervised release for at least two years but not more than three years for Counts (1), (2), (6), (7), and (8), and at least three years but not more than five years for Counts (3), (4), and (5). (Id., Doc. No. 60 at ¶ 98).

         At the sentencing hearing, the parties agreed that the correct guidelines range was a mandatory life sentence for Count (4) and a sentence between 360 months to life on the remaining counts. (Id., Doc. No. 52 at 3-4). Defense counsel requested a downward departure based on circumstances including Petitioner's young age and diagnoses with serious mental and emotional disabilities. (Id., Doc. No. 39); (Id., Doc. No. 52 at 5). The Court denied the Motion because the life sentence was mandatory under § 3559(c) and there was no discretion. (Id., Doc. No. 52 at 7). The Government argued that Petitioner is a dangerous gang member who recruited young kids for the bank robberies, then tried to cover it up. (Id., Doc. No. 52 at 9). Petitioner addressed the Court and stated that he felt he had been wronged in some way because he did not take part in the actual bank robbery and did not have a fair trial because a lot of people came in and lied on the stand. (Id., Doc. No. 52 at 10-11).

         The Court noted that Petitioner received a fair trial including “excellent representation … in a vigorous defense.” (Id., Doc. No. 52 at 11). The Court took into account the § 3553(a) factors including Petitioner's young age, his history of mental and emotional disabilities and criminal history, the Court's duty to protect the public from Petitioner's further crimes and the serious circumstances of this case which involved a “very horrific bank robbery in which the defendant employed juveniles to rob banks - or rob a bank for the purpose of gang admission, with one of those juveniles firing a shot into the ceiling, another assaulting a customer, and Mr. James attempting to orchestrate his defense at trial from prison and further trying to elicit others to engage in obstructive injurious conduct and, … Mr. James himself engaged in perjury at trial.” (Id., Doc. No. 52 at12-13).

         The Court concluded that, based on Petitioner's prior record, the nature and circumstances of the case, and his status as a career offender, that the life sentence was appropriate:

[T]he sentence imposed in this case including the mandatory life imprisonment sentence is sufficient but not greater than necessary to accomplish the sentencing object[ives] of Section 3553(a), including promoting respect for the law, affording adequate deterrent, but most importantly, protecting the public from further crimes of the defendant, and the court will attempt in structuring this sentence to provide Mr. James rehabilitation in the most effective manner that the court knows of in terms of recommendations to the Federal Bureau of Prisons, but Mr. James is a career offender under the guidelines and has violated the three strikes statute of 18 United States Code Section 3559. And in addition, he committed the incident offenses, as I said, by soliciting three juveniles to commit the robbery for purposes of entering into a street gang in which Mr. James is an admitted gang member.

(Id., Doc. No. 52 at 12-13).

         The Court accordingly adjudicated Petitioner guilty and sentenced him on Counts (1) and (7) to 60 months' imprisonment, concurrent; on Count (2) to 240 months' imprisonment, concurrent; on Count (3) to 300 months' imprisonment, concurrent; on Count (5) to 360 months, concurrent; on Count (6) to 60 months concurrent; on Count (8) to 120 months concurrent; and on Count (4) to life, consecutive, followed by three years of supervised release for Counts (1), (2), (3), (6), (7), and (8), and five years of supervised release for Counts (4) and (5), concurrent. (Id., Doc. No. 40).

         Counsel filed a memorandum brief on direct appeal pursuant to Anders v. California, 386 U.S. 738 (1967), conceding the lack of meritorious grounds for appeal but questioning whether Petitioner's life sentence pursuant to § 3559(c) violated the Eighth Amendment's prohibition against cruel and unusual punishment because it did not take into account the circumstances of Petitioner's childhood. The Fourth Circuit found that Petitioner's sentence was not constitutionally disproportionate and reviewed the entire record and found no meritorious issues for appeal. It therefore affirmed Petitioner's convictions and sentence. United States v. James, 276 Fed.Appx. 301 (4th Cir. 2008).

         On August 4, 2009, Petitioner filed his first § 2255 Motion to Vacate, case number 3:09-cv-344. The Court denied and dismissed relief on the merits on June 11, 2012. (3:09-cv-344, Doc. No. 39). Petitioner filed a Motion for Reconsideration more than a year later, (Doc. No. 42), and filed a Motion to Amend/Correct nearly four years later, (Doc. No. 51). The Court denied both Motions on August 6, 2019 because “the Court fully and finally ...


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