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Royster v. United States

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

September 18, 2019

MACEO ROYSTER, Petitioner,


          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER is before the Court on Petitioner’s Motion to Amend, (Doc. No. 2 at 1-2), and his Amended 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence, (Doc. No. 2-1).[1]

         I. BACKGROUND

         Petitioner and two co-defendants were indicted for: Count (1), conspiracy to commit theft of a firearm from a federal firearm licensee; Count (2), theft from a licensed firearm dealer and aiding and abetting the same in violation of 18 U.S.C. § 922(u) and 2; and Count (3), possession of stolen firearms and aiding and abetting the same. (3:16-cr-303, Doc. No. 22).

         Petitioner pled guilty to Count (2) in exchange for the Government’s dismissal of the remaining Counts. (Id., Doc. No. 42). The plea agreement contains appellate and post-conviction waivers. (Id., Doc. No. 42 at 4-5).

         Petitioner admitted in the written Factual Basis in support of his guilty plea that he, his two co-defendants, and an unindicted co-conspirator “burglarized The Range at Lake Norman, a Federal Firearms Licensee….” (Id., Doc. No. 41 at 1). Petitioner and two of the other participants broke out glass in a door with a hammer, entered the entry are and broke a second window. They entered the gun store and “[a]ll three men grabbed rifles and/or pistols….” (Id., Doc. No. 41 at 2).

         The Presentence Investigation Report (“PSR”) scored the base offense level as 18 pursuant to U.S. Sentencing Guidelines § 2K2.1(a)(5). (Id., Doc. No. 66 at ¶ 28). Six levels were added because the offense involved 25 or more firearms, and two more levels were added because the firearms were stolen. (Id., Doc. No. 66 at ¶¶ 29-30). Four levels were added because Petitioner used or possessed a firearm or ammunition in connection with another felony offense, the burglary of the firearm dealer, or possessed or transported any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony. (Id., Doc. No. 66 at ¶ 31). Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 27. (Id., Doc. No. 66 at ¶¶ 38-40). Petitioner had four criminal history points and two more points were added because Petitioner committed the instant offense while under a criminal justice sentence. (Id., Doc. No. 66 at ¶¶ 52-53). The total criminal history score was therefore six and the criminal history category was III. (Id., Doc. No. 66 at ¶ 54). The resulting advisory guideline range was 87 to 108 months’ imprisonment. (Id., Doc. No. 66 at ¶ 97).

         At sentencing, the guideline range was adjusted to reflect the correct number of firearms involved, 24, resulting in a final guideline range of 70 to 87 months’ imprisonment. See (Id., Doc. No. 86). On September 18, 2017, the Court sentenced Petitioner below the guidelines range to 60 months’ imprisonment. See (Id., Doc. No. 86). Petitioner did not appeal.

         Petitioner filed the § 2255 Motion to Vacate in the instant case on August 9, 2018, and the Amended § 2255 Motion to Vacate on September 6, 2018. Construing the Amended § 2255 petition liberally, Petitioner argues that counsel was ineffective for: (1) failing to object when the Court misapplied the six-level increase pursuant to Guidelines § 2K2.1(b)(1)(C) because the correct number of firearms only supports a four-level enhancement; and (2) failing to object that the firearm enhancement pursuant to Guidelines § 2K2.1(b)(4)(A) is inapplicable because the base offense level already takes into account that the firearm or ammunition was stolen.


         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 argument presented by the Petitioner can be resolved 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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