United States District Court, W.D. North Carolina, Statesville Division
Kenneth D. Bell, United States District Judge.
MATTER is before the Court on Petitioner's pro
se Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1).
was indicted in the underlying criminal case for a single
count of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). (5:17-cr-20, Doc.
No. 1). He pled guilty straight-up. See
(Id., Doc. No. 14) (Factual Basis). Petitioner
stated under oath at a Rule 11 hearing before Magistrate
Judge Keesler that he was knowingly and voluntarily pleading
guilty, acknowledged the rights he was waiving by entering
his plea, and the consequences of his plea including his
sentencing exposure. See (Id., Doc. No. 35 at 5-8).
Petitioner acknowledged that he had discussed with his lawyer
how the U.S. Sentencing Guidelines might apply to his case,
that the Court had not yet determined his sentence, and that
he may receive a sentence higher or lower than the advisory
guidelines range. (Id., Doc. No. 35 at 5-8).
Petitioner agreed that his plea was not the product of any
threats, intimidation, or promises of leniency or a light
sentence. (Id., Doc. No. 35 at 10). Petitioner had
enough time to discuss with his lawyer any possible defenses
and he stated his satisfaction with her services.
(Id., Doc. No. 35 at 10).
Presentence Investigation Report (“PSR”) scored
the base offense level as 24 pursuant to U.S. Sentencing
Guidelines § 2K2.1 for a violation of § 922(g)(1)
subsequent to Petitioner's commission of at least two
felony convictions of a crime of violence, i.e.,
common law robbery in Iredell County case numbers 00CRS50281
and 02CRS52894. (Id., Doc. No. 23 at ¶ 15).
Three levels were deducted for acceptance of responsibility
resulting in a total offense level of 21. (Id., Doc.
No. 23 at ¶¶ 22-24). Petitioner received no Chapter
Four enhancements. (Id., Doc. No. 23 at ¶ 20).
PSR's Criminal History section scored the following North
00CRS50281: common law robbery (19 to 23 months'
imprisonment), 3 points
02CRS52894: common law robbery (19 to 23 months'
imprisonment, suspended); 02CRS53151 & 02CRS53152:
assault on a law enforcement officer/ police officer with a
firearm (36 to 53 months' imprisonment, suspended), 3
09CR52575: flee/elude arrest with motor vehicle (120
days' imprisonment); 09CR52576: reckless driving to
endanger (60 days' imprisonment), 2 points
11CR4073: driving while license revoked (91 days'
imprisonment), 2 points
13CR1833: driving while license revoked (45 days'
imprisonment), 1 point
13CR4208: driving while license revoked (45 days'
imprisonment) 13CR4209: possession of drug paraphernalia
(consolidated with 13CR4208), 1 point
14CRS55081: possession of marijuana (100 days'
imprisonment, suspended), 1 point
15CRS53190: assault on a female (150 days' imprisonment,
suspended), 1 point
16CR50980: assault on a female (150 days' imprisonment),
(Id., Doc. No. 23 at ¶¶ 30, 34, 35, 37,
41, 42, 43, 44, 46).
more points were added because Petitioner committed the
instant offense while under a criminal justice sentence.
(Id., Doc. No. 23 at ¶¶ 47-48). This
resulted in a criminal history score of 18 and a criminal
history category of VI. (Id., Doc. No. 23 at ¶
resulting advisory guideline imprisonment range was 77 to 96
months followed by between one and three years of supervised
release. (Id., Doc. No. 23 at ¶¶ 114,
filed objections to the PSR on Petitioner's behalf
arguing, inter alia, that the two North Carolina
robbery convictions do not qualify as “crimes of
violence” for purposes of the ...