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Jones v. United States

United States District Court, E.D. North Carolina, Western Division

October 30, 2019

LEANDER DEWEY JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE Chief United States District Judge

         This cause is before the court to address petitioner's pro se motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 [D.E. 40] and respondent's motion to dismiss [D.E. 45].

         Background:

         On May 9, 2016, pursuant to a written plea agreement, petitioner pleaded guilty to manufacture of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2251(e) (Count One). See Mem. of Plea [D.E. 21]; Hr'g Tr. [D.E. 35] at 14. On August 30, 2016, over petitioner's objection, the court applied § 4B1.5(b) of the United States Sentencing Guidelines (U.S.S.G. or Guidelines), which provides for a five-point sentence enhancement if "the defendant's instant offense of conviction is a covered sex crime ... and the defendant engaged in a pattern of activity involving prohibited sexual conduct." See Sentencing Hr'g Tr. [D.E. 34] at 13-14. The court then sentenced petitioner to, among other things, 360 months' imprisonment. Id. at 23; J. [D.E. 26].

         Petitioner appealed, challenging the substantive reasonableness of the sentence pursuant to Anders v. California, 386 U.S. 738 (1967). See [D.E. 30]. On February 1, 2017, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") issued an unpublished opinion that granted the Government's motion to dismiss the appeal pursuant to petitioner's waiver and otherwise affirmed the district court's judgment [D.E. 37].

         On February 16, 2018, petitioner filed the instant section 2255 motion [D.E. 40]. Petitioner argues that: (1) the government violated the terms of petitioner's plea agreement by seeking an enhanced sentence under U.S.S.G. § 4B1.5(b); and (2) his counsel was constitutionally ineffective in failing to object to this enhancement. Id. at 4-6.

         On April 9, 2018, respondent moved to dismiss this section 2255 motion under Federal Rule of Civil Procedure 12(b)(6). See Resp't Mot. Dismiss [D.E. 45]; Resp't Mem. [D.E. 46]. The court notified petitioner of the pending motion to dismiss, the deadline for filing a response, and the consequences of failing to respond [D.E. 47]. Petitioner did not timely respond but moved out-of-time for an extension of time to respond and asserted he was under the impression that the Federal Public Defender would file a motion on his behalf [D.E. 48]. On August 8, 2019, the court granted petitioner's motion for an extension of time [D.E. 49]. On August 26, 2019, petitioner again moved for an extension of time [D.E. 50]. On September 13, 2019, the court granted petitioner a final extension of time [D.E. 51]. On October 3, 2019, petitioner filed a response [D.E. 53].

         Discussion:

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted" tests the legal sufficiency of the pleading and should be granted unless the pleading states a facially plausible claim for relief. See Fed.R.Civ.P. 12(b)(6); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to section 2255 proceedings). When considering a Rule 12(b)(6) motion, the court assumes the truth of all facts alleged in the complaint, but need not accept legal conclusions drawn from the facts. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). A court also "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quotation omitted).

         Petitioner first argues that the government violated the terms of his plea agreement by requesting an enhancement of his sentence in reliance on criminal conduct not covered by terms of his guilty plea. See [D.E. 40] at 4. The record reflects that the enhancement was sought under U.S.S.G. §4B1.5(b). Sentencing Hr'g Tr. [D.E. 34] at 13-14; Pre-sentence Report [D.E. 24] at¶47.

         Guidelines section 4B 1.5(b) states:

(b) In any case in which the defendant's instant offense of conviction is a covered sex crime, neither § 4B1.1 nor subsection (a) of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited sexual conduct:
(1) The offense level shall be 5 plus the offense level determined under Chapters Two and Three. However, if the resulting offense level is less than level 22, the offense level shall be level 22, decreased by the number of levels corresponding to any applicable adjustment from § 3E1.1.
(2) The criminal history category shall be the criminal history category determined under ...

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