United States District Court, W.D. North Carolina, Charlotte Division
COGBURN JR., UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's
pro se Motion to Vacate Sentence pursuant to 28
U.S.C. § 2255, arguing that his conviction for violating
18 U.S.C. § 924(c) is invalid under United States v.
Davis, 139 S.Ct. 2319 (2019). (Doc. No. 1).
was charged by Bill of Information with: Count (1), conspiracy
to distribute and possess with intent to distribute at least
500 grams of a mixture and substance containing
methamphetamine (21 U.S.C. §§ 841(b)(1)(A),
841(a)(1), 846); and Count (2), possession of firearms in
furtherance of a drug trafficking crime, i.e., the
drug conspiracy charged in Count (1) (18 U.S.C. §
924(c)). (3:18-cr-122, Doc. No. 14). Petitioner pled guilty
to both charges and admitted his guilt. (Id., Doc.
No. 15) (Plea Agreement); see also (Id.,
Doc. No. 16) (Factual Basis).
Presentence Investigation Report (“PSR”) scored
the base offense level for Count (1) as 32 because the
offense involved at least 1.5 kilograms, but less than 5
kilograms, of methamphetamine as stipulated by the parties.
(Id., Doc. No. 28 at ¶ 17). Two levels were
added because Petitioner maintained premises for the purposes
of manufacturing or distributing a controlled substance.
(Id., Doc. No. 28 at ¶ 19). Three levels were
deducted for acceptance of responsibility, resulting in a
total offense level of 31 for Count (1). (Id., Doc.
No. 28 at ¶¶ 25, 27). Petitioner had 10 criminal
history points and a criminal history category of V.
(Id., Doc. No. 28 at ¶¶ 46-47). The
resulting guideline range for Count (1) was 168 to 210
months' imprisonment plus the five-year consecutive
sentence required by statute for Count (2). (Id.,
Doc. No. 28 at ¶ 28, 97-98).
Court granted a downward variance and reduced the offense
level to 28, resulting in a revised advisory guideline range
of 130 to 162 months' imprisonment. See
(Id., Doc. No. 35). In a Judgment entered on
November 2, 2018, the Court sentenced Petitioner to 132
months' imprisonment for Count (1) and 60 months,
consecutive, for Count (2) for a total sentence of 192
months' imprisonment. (Id., Doc. No. 34).
Petitioner did not appeal.
timely filed the instant § 2255 Motion to Vacate on
September 26, 2019. Liberally construing the pro se
claims,  Petitioner appears to argue that his
§ 924(c) conviction and sentence should be vacated
because § 924(c) is unconstitutional pursuant to
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).
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).
924(c) prohibits using or carrying a firearm “during
and in relation to any crime of violence or drug trafficking
crime….” 18 U.S.C. § 924(c)(1). A
“drug trafficking crime” is “any felony
punishable under the Controlled Substances Act (21 U.S.C. 801
et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or chapter 705
of title 46.” 18 U.S.C. § 924(c)(2).
“crime of violence” is defined as an offense that
is a felony and:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or ...