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. 1] and Petitioner's Amended
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255 [Doc. 3].
17, 2017, Petitioner Tammy Denise Smith
(“Petitioner”) was charged in an eight-count Bill
of Indictment, along with three co-defendants, with one count
of drug trafficking conspiracy involving five kilograms or
more of cocaine, all in violation of 21 U.S.C. §§
841(a)(1) and 846 and one count of possession of a firearm in
furtherance of drug trafficking as charged in Count One, in
violation of 18 U.S.C. § 924(c) (“§ 924(c)
charge”). [Criminal No. 3:17-cr-00137-RJC-DCK, Doc. 37:
Indictment]. On January 24, 2018, Petitioner was charged in a
Bill of Information with one count of drug trafficking
conspiracy, in violation of 21 U.S.C. §§ 841(a)(1)
and 846 (Count One). [Criminal No. 3:18-cr-00025-RJC-DCK
(“CR”), Doc. 1]. On the same day, Petitioner and
the Government entered into a Plea Agreement, pursuant to
which Petitioner agreed to plead guilty to Count One in the
Bill of Information and the Government agreed to dismiss the
§ 924(c) charge in the original Indictment in Criminal
No. 3:17-cr-137. [CR Doc. 3 at 1: Plea Agreement].
January 26, 2018, Petitioner pleaded guilty to Count One in
accordance with the Plea Agreement. [CR Doc. 6: Acceptance
and Entry of Guilty Plea]. The Plea Agreement provides, among
other things, that pursuant to Rule 11(c)(1)(B), the parties
agree to jointly recommend that the Court make the following
findings and conclusions as to the U.S.S.G.:
a. The amount of cocaine base (“crack cocaine”)
that was known to or reasonably foreseeable by the Defendant
was in excess of two hundred and eighty grams but less than
eight hundred forty (840) grams, resulting in a base offense
level of 30.
b. The Defendant agrees that the Defendant should receive a
2-level weapon enhancement pursuant to U.S.S.G. §
2D1.1(b)(1). The Defendant further agrees that the Defendant
is not eligible for the “safety valve” pursuant
to 18 U.S. Code §3553(f) and U.S.S.G. §§
2D1.1(b)(17) and 5C1.2.
f. Having fully considered the factors set forth in 18 U.S.C.
§ 3553(a), the parties agree that the appropriate
sentence is one within “the applicable guideline
range” (U.S.S.G. § 5C1.1) determined by the
district court at sentencing and that a sentence within that
range is sufficient but not greater than necessary. Neither
party will seek a departure or variance from that range.
[CR Doc. 3 at 2-3]. The Plea Agreement also includes an
express waiver by Petitioner of her rights to contest her
conviction and/or sentence under Section 2255 except for
claims of ineffective assistance of counsel or prosecutorial
misconduct. [CR Doc. 3 at 5].
Factual Basis was filed with the Plea Agreement in accordance
with Rule 11(b)(3) of the Federal Rules of Criminal
Procedure. In the Plea Agreement, Petitioner stipulated that
she had read and understood the Factual Basis and that it may
be used by the Court and the United States Probation Office
without objection by the Petitioner to determine the
applicable advisory guideline range or the appropriate
sentence under 18 U.S.C. § 3553(a). [Id. at
4-5]. The Factual Basis, in addition to setting forth facts
in support of Petitioner's guilty to plea to Count One
states: “On April 26, 2017, law enforcement executed
several federal search warrants in this investigation. At
Defendant Tammy SMITH's residence, they found, among
other things, suspected cocaine, two firearms, and, in her
purse, $1, 214 in U.S. currency.” [CR Doc. 2 at 1-2].
October 1, 2018, Petitioner's sentencing hearing was
held. Before her sentencing hearing, a probation officer
prepared a Presentence Report. [CR Doc. 18]. The probation
officer noted the parties' agreement “that a
two-level enhancement is applicable pursuant to USSG
§2D.1(b)(1)” and that “[n]either party will
seek a departure or variance from the applicable guidelines
in this case.” [Id. at ¶ 3]. The
probation officer recommended a Base Offense Level of 30 and
a 2-point firearm enhancement under U.S.S.G.
§2D1.1(b)(1). [Id. at ¶¶ 20-21]. With
adjustments for Petitioner's role in the offense and
acceptance of responsibility, Petitioner's Total Offense
Level (TOL) was 27. [Id. at ¶¶ 23, 27-29].
Petitioner had a Criminal History Category of IV.
[Id. at 46]. The probation officer noted the
statutory minimum term of imprisonment for Petitioner's
offense was 5 years and the maximum term was 40 years.
[Id. at ¶ 75]. The probation officer, based on
a TOL of 27 and Criminal History Category IV, recommended a
guideline imprisonment range of 100 to 125 months.
[Id. at ¶ 76]. The Court adopted the PSR with
one modification to Petitioner's criminal history
computation that did not change Petitioner's total
criminal history points or category. [CR Doc. 24 at 1:
Statement of Reasons]. The Court sentenced Petitioner to a
term of imprisonment of 100 months. [CR Doc. 23 at 2:
Judgment]. Judgment on this conviction was entered on October
26, 2018. [Id.]. Petitioner did not file a direct
appeal of her conviction.
August 23, 2019, Petitioner file a motion to vacate sentence
under 28 U.S.C. § 2255, arguing that recent Supreme
Court decisions, including United States v. Davis,
Johnson v. United States, and Sessions v.
Dimaya, contain new rules of constitutional law that
were previously unavailable and now render the 2-point
firearm enhancement applied in Petitioner's sentencing
improper. [Doc. 1]. Although difficult to follow, it seems
Petitioner argues that because the Supreme Court
“struck down the definition of ‘crime of
violence' in the 924(c)” and because
“elements of the crime of violence are used in
determining whether to apply the two (2) point enhancement
for a firearm under Guideline 2D1.1, ” then
Petitioner's sentence based in part on this enhancement
is improper. [See id. at 1-2]. Petitioner argues,
“a reasonable jury would not have found that the
defendant engaged in conduct that posed a substantial risk of
violence, this making 2D1 vague in violation of the
defendant's Due Process.” [Id. at 3].
Petitioner also seems to now refute that the firearm was
found in her residence. [Id. at 2]. Petitioner,
however, failed to sign this petition under penalty of
perjury and the Court, therefore, ordered that she resubmit
her petition signed under penalty of perjury and on the
proper form. [See Doc. 1 at 4; Doc. 2].
September 16, 2019, Petitioner submitted an Amended Section
2255 motion to vacate on the proper form and signed under
penalty of perjury, but did not restate her grounds for
relief or any supporting facts other than to say,
“Claim contains new rule of constitutional law, made
retroactive to cases on collateral review by U.S. Supreme
Court that was previously unavailable.” [Doc. 3 at 5].
The Court, therefore, for Petitioner's benefit, considers
both Petitioner's original Section 2255 motion and her
Amended Section 2255 motion collectively in determining the
cognizability of her claim on initial review.