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Howie v. United States

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

September 27, 2019

ANTONIO NAVARRO HOWIE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          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 the § 2255 Motion to Vacate, (Doc. No. 7).

         I. BACKGROUND

         Petitioner was indicted in the underlying criminal case for: Counts (1) and (5), possession of a firearm and ammunition by a convicted felon (larceny from the person and sale of cocaine) (18 U.S.C. §§ 922(g)(1) and 2); Count (2), Hobbs Act conspiracy (18 U.S.C. § 1951(b)(3)); Count (3), Hobbs Act robbery and aiding and abetting the same (18 U.S.C. §§ 1951 and 2); and Count (4), using and carrying a firearm in furtherance of a crime of violence, “that is, the violation of Title 18, United States Code 1951 set forth in Count Three, ” and aiding and abetting the same (18 U.S.C. § 924(c) and 2). (3:06-cr-50, Doc. No. 1 at 3).

         After Petitioner’s Motion to Suppress was denied, Petitioner pled guilty to Counts (2) and (4) in exchange for the Government’s dismissal of the remaining counts. (Id., Doc. No. 42); see (Id., Doc. No. 28); (Id., Oral Order, May 5, 2006). The written Plea Agreement acknowledges that Petitioner “is in fact guilty as charged in those counts” in that:

On November 13, 2005, the defendant, along with Grandon Parks and Quedolthius Jones, did rob the Petro Express gas station and convenience store located at 7208 East Independence Blvd., Charlotte, N.C. The defendant further admits that, during the robbery, a firearm was knowingly utilized, and brandished to further the robbery, including but not limited to, intimidating, threatening, and forcing the manager of the store to turn over all of the store’s money. The defendant admits to helping plan and carry out the robbery knowing full well all the details of said robbery, including but not limited to, the utilization of the firearm to aid and further the crime.

(Id., Doc. No. 42 at 1).

         Petitioner acknowledged his sentencing exposure and the parties stipulated that they would recommend that the Court find that the base offense level is 18 per 2B3.2(a), that two levels are added for threat of injury 2B3.2(b)(1), that five levels are added for brandishing a firearm 2B3.2(b)93), and two more levels are added for physical restraint 2B3.2(b), resulting in an adjusted offense level of 27. (Id., Doc. No. 42 at 2). The Government agreed not to oppose a three-level reduction for acceptance of responsibility. The parties acknowledged that, notwithstanding any recommendations in the plea agreement with regards to offense level, a career offender enhancement may be used in determining Petitioner’s sentence. (Id., Doc. No. 42 at 3). “Should such a statutory minimum sentence apply, the Court shall impose a sentence no lower than that statutory minimum.” (Id.).

         The Plea Agreement states that Petitioner acknowledged the rights he was waiving by pleading guilty, including the right to be tried by a jury, to be assisted by an attorney at trial, to confront and cross-examine witnesses, and not to be compelled to incriminate himself. (Id., Doc. No. 4-5). Petitioner and counsel discussed his rights to appeal and to seek post-conviction relief and Petitioner specifically waived both rights except for claims of ineffective assistance of counsel and prosecutorial misconduct. (Id., Doc. No. 42 at 5).

         At the Rule 11 hearing, the Magistrate Judge summarized the charges as follows:

THE COURT: … The indictment against Mr. Howie is begun by an introductory allegation that at all times material to the indictment, Petro Xpress, located at 7208 East Independence Boulevard in Charlotte, was a business engaged in commercial activities within the Western District of North Carolina and elsewhere; specifically the sale of gasoline and alcohol which activities affected interstate commerce.
Now, with that background it’s alleged that on or about a specific date, November 13th, 2005, in Mecklenburg County, North Carolina, that Mr. Howie knowingly and unlawfully conspired with two other individuals, and perhaps others known and unknown to the grand jury, to obstruct, delay and affect commerce, as that term is defined in Title 18, U.S. Code, Section 1951(b)(3) of this business engaged in the sale of products affecting interstate commerce.
The charged co-conspirators in addition to Mr. Howie would be Grandon Martinez Parks and Quedolthius Miguel Jones.
The overt act in the furtherance of the conspiracy are acts alleged to be a robbery, an attempted robbery of the Petro Xpress at the previously stated address.
Count Four alleges that on or about November 13th, 2005, in connection with this robbery, that a firearm, specifically a .40 caliber Smith & Wesson Sigma semiautomatic pistol and ammunition were used and carried in furtherance of this and possessed in connection with this robbery.

(Id., Doc. No. 131 at 6).

         Petitioner acknowledged under oath that he was entering the plea knowingly and voluntarily and agreed to the Plea Agreement’s terms. (Id., Doc. No. 131 at 22).

         The Presentence Investigation Report (“PSR”) calculated the base offense level of 20 for a violation of § 1951(b)(3) pursuant to U.S. Sentencing Guidelines § 2B3.1 (Id., Doc. No. 121 at ¶ 15). The PSR did not include an enhancement for brandishing but did add two levels because two victims were physically restrained to facilitate the commission of the robbery. (Id., ...


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