United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
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).
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).
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).
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).
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).
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.
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.
STANDARD OF REVIEW
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).
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