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 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).
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
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).
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.).
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).
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).
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.,