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Lattaker v. United States

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

September 18, 2019



          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, (Doc. No. 1), in which he raises a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), and on the Government’s Motion to Dismiss Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence, (Doc. No. 7).

         I. BACKGROUND

         Petitioner pled guilty in the underlying criminal case to one count of Hobbs Act robbery (18 U.S.C. § 1951), possession of a firearm during and in relation to a crime of violence, i.e., Hobbs Act robbery (18 U.S.C. § 924(c)(1)), and possession of a firearm by a felon (18 U.S.C. § 922(g)). (3:07-cr-94, Doc. Nos. 1, 32).

         The Presentence Investigation Report calculated the offense level as 32 because Petitioner is a career offender, having prior convictions for robbery and first-degree attempted robbery, and because the instant offense, Hobby Act robbery. (Id., Doc. No. 30 at ¶ 43). Two levels were deducted for acceptance of responsibility, resulting in a total offense level of 30. (Id., Doc. No. 30 at ¶¶ 44-45). Petitioner has 24 criminal history points and two points were added because Petitioner was on probation at the time of the instant offense, resulting in a criminal history category of VI, and the criminal history category for career offenders is also VI. (Id., Doc. No. 30 at ¶¶ 71-73). The resulting guidelines range was 292 to 365 months’ imprisonment. (Id., Doc. No. 30 at ¶ 118).

         The Court accepted the PSR without change and sentenced Petitioner to a total sentence of 360 months’ imprisonment consisting of 240 months for the Hobbs Act robbery and weapon possession, and a consecutive 84-month sentence for the § 924(c) violation. (Id., Doc. No. 32). Counsel filed a memorandum brief on direct appeal. The Fourth Circuit affirmed, finding that Petitioner’s plea was knowing and voluntary and that the sentence was reasonable. United States v. Lattaker, 2009 WL 82714 (4th Cir. 2009).

         Petitioner filed the instant § 2255 Motion to Vacate through counsel on June 20, 2016. (Doc. No. 1). He argues that his career offender enhancement and § 924(c) conviction are invalid in light of Johnson, because: (1) his prior convictions are not crimes of violence under the career offender guideline; (2) the predicate offense of Hobbs Act robbery is not a crime of violence under the career offender guideline; and (3) Hobbs Act robbery is not a crime of violence for purposes of the § 924(c) conviction.

         This case was stayed for several years during the pendency of United States v. Ali, 15-4433, United States v. Simms, 15-4640, and United States v. Davis, No. 18-431. (Doc. Nos. 4, 6).

         On August 23, 2019, the Government filed a Motion to Dismiss the § 2255 Motion to Vacate, (Doc. No. 7), arguing that Petitioner’s claims are waived, procedurally barred, and foreclosed by precedent. Petitioner has not filed a Response and the time to do so has now expired.


         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Rule 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 arguments presented by Petitioner 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).


         (1) Waiver

         “[A] guilty plea constitutes a waiver of all nonjurisdictional defects, including the right to contest the factual merits of the charges.” United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). Thus, after a guilty plea, a defendant may not “raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Blackledge v. Perry, 417 U.S. 21, 29-30 (1974). Rather, he is limited “to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases.” Id. There are narrow exceptions to the enforceability of plea waivers such that “even a knowing and voluntary waiver of the right to appeal cannot bar the defendant from obtaining appellate review of certain ...

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