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Richardson v. United States

United States District Court, W.D. North Carolina, Charlotte Division

September 9, 2019

ANTHONY JARON RICHARDSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Richard L. Voorhees United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate Sentence under Simmons:[1] Petition for Relief Under 28 U.S.C. § 2241, Alternative Petition for Writ of Coram Nobis; and Alternative Petition for Writ of Audita Querela, (Doc. No. 1).

         I. BACKGROUND

         Petitioner was indicted in the underlying criminal case for: Count (1), possession with intent to distribute 50 grams of a mixture and substance containing a detectable amount of cocaine base (21 U.S.C. §§ 841(a), 851); Count (2), using and carrying a firearm during and in relation to a drug trafficking crime and possession in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)); and Count (3), possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)). (3:01-cr-127, Doc. No. 1) (Indictment). The United States filed a Notice pursuant to 21 U.S.C. § 851 notifying Petitioner that it intended to seek an enhanced penalty for his prior conviction for a “drug felony offense, ” i.e., his November 30, 2000 North Carolina conviction for possession with intent to sell or deliver cocaine. (3:01-cr-127, Doc. No. 7) (Notice of Intent to Seek Enhanced Penalty). That same prior conviction also supported Count (3) alleging possession of a firearm by a convicted felon. (3:01-cr-127, Doc. No. 1) (Indictment). Petitioner entered a straight-up guilty plea which was accepted on January 18, 2002.

         The Presentence Investigation Report (“PSR”) scored the base offense level for Count (1) as 34 based on the quantity of drugs for which Petitioner was responsible. (3:01-cr-127, Doc. No. 31 at ¶ 16) (PSR). Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 31. (3:01-cr-127, Doc. No. 31 at ¶¶ 22, 23, 25). No. guideline calculations were provided for Count (2) because a conviction of § 924(c) requires a mandatory statutory sentence. (3:01-cr-127, Doc. No. 31 at ¶ 26). The base offense level for Count (3) was scored as 20 because the offense was a violation of § 922(g). (3:01-cr-127, Doc. No. 31 at ¶ 27). Four levels were added because Petitioner possessed a firearm with knowledge, intent, or reason to believe that it would be used or possessed with another felony offense, drug trafficking. (3:01-cr-127, Doc. No. 31 at ¶ 28). Three levels were deducted for acceptance of responsibility, resulting in a total offense level for Count (3) of 21. (3:01-cr-127, Doc. No. 31 at ¶¶ 33, 34, 36). Petitioner had two criminal history points and two more points were added because Petitioner was on supervised probation when he committed the instant offenses. (3:01-cr-127, Doc. No. 31 at ¶¶ 42, 43). This resulted in a total of four criminal history points and a criminal history category of III. (3:01-cr-127, Doc. No. 31 at ¶ 44). The resulting guidelines imprisonment range was 135 to 168 months for Counts (1) and (3) and a mandatory statutory sentence of five years, consecutive, for Count (2). (3:01-cr-127, Doc. No. 31 at ¶¶ 61, 62).

         In a Judgment docketed on October 24, 2002, the Court adjudicated Petitioner guilty and sentenced him to 240 months' imprisonment for Count (1), 120 months' imprisonment for Count (3), concurrent, and 60 months for Count (3), consecutive, followed by 10 years of supervised release for Counts (2) and (3) and three years for Count (1), concurrent. (3:01-cr-127, Doc. No. 21) (Judgment). Petitioner's direct appeal was dismissed on June 25, 2003, Fourth Circuit case number 02-4909.

         Petitioner filed a § 2255 Motion to Vacate in 2006 which was dismissed as time-barred on March 2, 2006, case number 3:06-cv-83. The Fourth Circuit denied a certificate of appealability and dismissed Petitioner's appeal. United States v. Richardson, 199 Fed.Appx. 200 (4th Cir. 2006). Petitioner subsequently sought authorization from the Fourth Circuit to file a second or successive § 2255 Motion to Vacate, which was denied. See (3:01-cr-127, Doc. No. 53) (Order).

         Petitioner filed two Motions seeking sentence reduction for his crack cocaine offense pursuant to 18 U.S.C. § 3582, which were denied because Petitioner's guideline range was unchanged due to the mandatory statutory sentence. See (3:01-cr-127, Doc. No. 37, 44, 45, 52) (Motions to Modify Sentence, Orders).

         On January 19, 2017, President Obama commuted Petitioner's total sentence of imprisonment, effective January 19, 2019, but left the supervised release intact. (3:01-cr-127, Doc. No. 57) (Executive Grant of Clemency).

         Petitioner filed the instant § 2241 Petition through counsel on August 26, 2013. He argues that his sentence for Count (1) is 10 years longer than he should have received for violating § 841 and that he is actually innocent of violating § 922(g)(1) in Count (3) because he has never been convicted of an offense for which he could have been sentenced to more than one year in prison pursuant to Simmons.

         This case has been stayed since September 29, 2016 pursuant to United States v. Surratt, 14-6851[2] and United States v. Wheeler, (4th Cir. 2018). See (Doc. No. 7, 10). This matter is ripe for disposition now that the Supreme Court denied certiorari in Wheeler, 139 S.Ct. 1318 (2019).

         The United States has filed a Response to the § 2241 Petition arguing that the claim for sentencing relief should be dismissed as moot because President Obama has commuted the sentence. However, the United States agrees that the Court should vacate Petitioner's felon-in-possession conviction in Count (3). (Doc. No. 14).

         II. DISCUSSION

         Section 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 ...


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