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
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 Rehaif v. United States, 139 S.Ct. 2191
pled guilty in the underlying criminal case to a single count
of possession of a firearm by a felon in violation of 18
U.S.C. §§ 922(g)(1) and 924 in exchange for the
Government's dismissal of a second count. (3:18-cr-57,
Doc. Nos. 3, 15). Petitioner voluntarily entered into a Plea
Agreement in which he admitted to being factually guilty of
the offense as charged. (Id., Doc. No. 15 at 1)
(Plea Agreement). The Plea Agreement contains express waivers
of Petitioner's right to pursue a direct appeal and
post-conviction remedies except for claims of ineffective
assistance of counsel or prosecutorial misconduct.
(Id., Doc. No. 15 at 4).
United States Magistrate Judge conducted a thorough plea
colloquy pursuant to Rule 11 during which Petitioner was
represented by counsel. See (Id., Doc. No.
17). Petitioner stated under oath that he received a copy of
the Indictment and discussed it with his attorney.
(Id., Doc. No. 17 at 1). He confirmed that he fully
understood the charges and his sentencing exposure.
(Id., Doc. No. 17 at 1). Petitioner had spoken to
his attorney about how the U.S. Sentencing Guidelines might
apply to his case, that the Court would not be able to
determine the applicable Sentencing Guidelines range until
after a Presentence Investigation Report (“PSR”)
had been prepared, and that he would still be bound by his
plea and would not have the right to withdraw it even if the
sentence was more severe than he expected or if the Court
does not accept the Government's sentencing
recommendation. (Id., Doc. No. 17 at 2). Petitioner
acknowledged the rights he was waiving by pleading guilty,
that the plea was freely and voluntarily entered, and that he
was expressly waiving his appellate and post-conviction
rights. (Id., Doc. No. 17 at 2-3). Petitioner had
discussed with his attorney any possible defenses to the
charges and that he was satisfied with counsel's
services. (Id., Doc. No. 17 at 3). Petitioner also
stated that he read, understood, and agreed with the Factual
Basis that was filed as an attachment to his Plea Agreement.
(Id., Doc. No. 17 at 3).
Factual Basis states, in pertinent part:
On or about January 30, 2018, the defendant …
possessed a firearm and ammunition at the Time Gas Station,
located at 1205 E. Garner Bagnal Blvd. in Statesville, North
Carolina. The Defendant was arrested after a domestic dispute
where he pointed the firearm at a female and assaulted the
female in the face with the firearm.
The defendant …, on or about June 30, 2018, in Iredell
County, within the Western District of North Carolina, and
elsewhere, having been previously convicted of one or more
crimes punishable by imprisonment for a term exceeding one
year, did knowingly and unlawfully possess a firearm, in and
affecting interstate commerce.
At the time of the incident, the defendant … was
previously convicted of one or more crimes punishable by
imprisonment for a term exceeding one year.
(Id., Doc. No. 16 at 1).
Magistrate Judge accepted Petitioner's plea after finding
that the plea was knowingly and voluntarily entered, that
Petitioner understood the charges, potential penalties, and
consequences of his plea, and that the plea was supported by
an independent factual basis containing each of the elements
of the offense to which he was pleading. (Id., Doc.
No. 17 at 4).
identified the underlying felony conviction as possession of
a firearm in Iredell County, case number 2014CRS4296, for
which Petitioner was sentenced to 19-32 months in prison.
(Id., Doc. No. 24 at ¶ 10). The PSR scored
Petitioner's base offense level as 20 for a violation of
§ 922(g)(1). (Id., Doc. No. 24 at ¶ 16).
Two levels were added pursuant to U.S. Sentencing Guidelines
§ 2K2.1(g)(4)(A) because a firearm was stolen.
(Id., Doc. No. 24 at ¶ 17). Four more levels
were added pursuant to § 2K2.1 because Petitioner used
or possessed a firearm or ammunition in connection with
another felony offense, i.e., aggravated assault.
(Id., Doc. No. 24 at ¶ 18). Three levels were
deducted for acceptance of responsibility, resulting in a
total offense level of 23. (Id., Doc. No. 24 at
¶¶ 23-27). The PSR's criminal history section
scored 24 criminal history points and a criminal history
category of VI. (Id., Doc. No. 24 at ¶¶
51-52). The resulting advisory guidelines range was 92 to 115
months' imprisonment and between one and three years of
supervised release. (Id., Doc. No. 24 at
¶¶ 87, 90). Neither party filed objections to the
PSR. See (Id., Doc. No. 24 at 22).
Court adjudicated Petitioner guilty of violating §
922(g)(1) and 924, adopted the PSR without change, and
sentenced Petitioner within the advisory range to 96
months' imprisonment followed by three years of
supervised release in a Judgment docketed on July 19, 2019.
(Id., Doc. No. 27); see (Id., Doc.
No. 28) (Statement of Reasons). Petitioner did not appeal.
filed the instant pro se § 2255 Motion to
Vacate on November 7, 2019 and it was docketed on November 13,
2019. He argues that his § 922(g) conviction is invalid
pursuant to Rehaif because the Government failed to
prove Petitioner's knowledge that he both possessed a gun
and belonged to the relevant category of persons barred from
possessing a firearm, i.e., ...