United States District Court, W.D. North Carolina, Asheville Division
REIDINGER United States District Judge
MATTER is before the Court on the Petitioner's
Motion to Vacate Sentence under 28 U.S.C. § 2255 [CV
Doc. 1] and the Government's Response to
Petitioner's Motion to Vacate [CV Doc. 10]. The
Petitioner is represented by Joshua Carpenter of the Federal
Defenders of Western North Carolina.
October 3, 2006, Petitioner Jacques Robert Jackson
(“Petitioner”) was charged, along with his
co-defendant Christopher Jonnell Tyler, in a Bill of
Indictment with one count of Hobbs Act robbery and conspiracy
to commit Hobbs Act robbery, in violation of 18 U.S.C. §
1951 and 2 (Count One), and one count of possessing and
brandishing a firearm in furtherance of a “crime of
violence, ” in violation of 18 U.S.C. § 924(c)
(Count Three). [CR Doc. 1: Indictment]. On December 20, 2006,
Petitioner was charged in a Superseding Indictment, which
retained the charges of the original Indictment and also
charged Petitioner with one count of being a felon in
possession of ammunition, in violation of 18 U.S.C. §
922(g)(1) (Count Five). [CR Doc. 22: Superseding Indictment].
On February 26, 2007, Petitioner and the Government entered
into an Amended Plea Agreement, pursuant to which Petitioner
agreed to plead guilty to Counts One and Three and the
Government agreed to dismiss Count Five. [CR Doc. 33: Amended
Plea Agreement at 1]. The Petitioner faced a maximum term of
twenty 20 years' imprisonment for Count One, see
18 U.S.C. §§ 1951 & 2, and a mandatory
consecutive sentence of not less than 10 years to life for
Count Three, see 18 U.S.C. § 924(c)(1)(A)(iii).
February 26, 2007, Petitioner pleaded guilty to Counts One
and Three. [CR Doc. 34: Acceptance and Entry of Guilty Plea].
In preparation for sentencing, a probation officer prepared a
Presentence Report (PSR). In the PSR, the probation officer
noted the mandatory 10 years to life consecutive sentence for
Petitioner's § 924(c) conviction. [CR Doc. 55 at
¶ 63]. The probation officer found the Total Offense
Level for Count One to be 29 and the Criminal History
Category to be VI. This yielded a Guidelines Range calling
for a total term of imprisonment for both Counts One and
Three of between 271 and 308 months. [CR Doc. 55 at 8, 13,
Petitioner's sentencing hearing was held on September 24,
2007, before the Honorable Lacy H. Thornburg, United States
District Judge. At the hearing, the Court adopted the
probation officer's findings, but granted the Defendant a
two level downward departure on the Government's motion,
and sentenced Petitioner to a term of imprisonment of 130
months on Count One, and a consecutive term of 120 months on
Count Three, for a total term of 250 months'
imprisonment. [CR Doc. 48: Judgment]. Petitioner did not file
a direct appeal from this Judgment. On the Government's
request and pursuant to Rule 35(b) of the Federal Rules of
Criminal Procedure, the Court entered an Amended Judgment on
August 13, 2012, reducing Petitioner's term of
imprisonment on Count One to 70 months; Petitioner's
sentence on Count Three remained unchanged. [CR Doc. 54:
Amended Judgment]. Petitioner did not file a direct appeal
from this Amended Judgment.
November 21, 2011, Petitioner filed a motion to vacate
sentence under 28 U.S.C. § 2255. [Civil No.
1:11-cv-00316-MR, Doc 1]. The Court denied and dismissed this
motion on the merits. [Id., Doc. 56].
9, 2016, with the authority of the Fourth Circuit Court of
Appeals to file a successive Section 2255 motion, the
Petitioner filed the present motion to vacate sentence under
28 U.S.C. § 2255, arguing, in part, that his conviction
under 18 U.S.C. § 924(c) is invalid under Johnson v.
United States, 135 S.Ct. 2551 (2015) [CV Docs. 1, 1-1].
Upon the request of the Government, this matter was stayed
pending the Fourth Circuit's decision in United
States v. Ali, No. 15-4433, or United States v.
Simms, No. 15-4640. [CV Doc. 6]. The Fourth Circuit then
ordered that Ali would be held in abeyance pending
the Supreme Court's decision in United States v.
Davis, No. 18-431. On the Government's request, this
matter was in turn stayed pending Davis. [CV Doc.
11]. The Supreme Court decided Davis on June 24,
2019. The next day this Court lifted the stay and ordered the
Government to respond to the Petitioner's motion by
August 23, 2019. Petitioner subsequently filed a supplemental
memorandum in support of his Section 2255 motion. [CV Doc.
13]. The Government timely filed its response, agreeing that
this Court should grant Petitioner's Section 2255 motion,
vacate his conviction under 18 U.S.C. § 924(c), and
resentence him on the remaining counts. [CV Doc. 14]. The
Government also argues that it should be relieved of its
obligations under the plea agreement should the Court grant
Petitioner's motion to vacate. [Id.].
been fully briefed, this matter is ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
Johnson, the Supreme Court struck down the Armed
Career Criminal Act's (ACCA) residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii), as unconstitutionally vague and held
that enhancing a sentence under the ACCA's residual
clause violates due process. Johnson, 135 S.Ct. at
2563. The ACCA residual clause defined a “violent
felony” to include any crime punishable by a term of
imprisonment exceeding one year that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B). Accordingly, under Johnson, a
defendant who was sentenced to a statutory mandatory minimum
term of imprisonment based on a prior conviction that
satisfies only the residual clause of the “violent
felony” definition is entitled to relief from his
sentence. The Supreme Court has held that Johnson
applies retroactively to claims asserted on collateral
review. Welch v. United States, 136 S.Ct. 1257, 1265
in his Section 2255 Motion to Vacate, the Petitioner argues
his § 924(c) conviction is invalid under
Johnson. [Doc. 1 at 1]. Section 924(c) criminalizes
the use of a firearm in furtherance of a “crime of
violence.” Under § 924(c), a crime is one of
violence if it either “has an element the use,
attempted use, or threatened use of physical force against
the person or property of another, ” (the “force
clause”) or “by its nature involves a substantial
risk that physical force against the person or ...