United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody [CR Doc.
Kenneth Lee Gardner (“Petitioner”) pleaded guilty
to one count of conspiracy to possess with the intent to
distribute less than 500 grams of a mixture or substance
containing cocaine, all in violation of 21 U.S.C.
§§ 841(a)(1) and 846. [CR Doc. 9: Amended Bill of
Information; Id. at Doc. 13: Acceptance and Entry of
Guilty Plea]. The Court sentenced Petitioner on May 20, 2010.
The probation office prepared a Presentence Investigation
Report (“PSR”) in advance of sentencing. [CR Doc.
19: Presentence Report]. Petitioner's Total Offense Level
was 29. [Id. at ¶ 26]. Petitioner's
criminal history category was VI. [Id. at ¶
45]. The resulting guidelines imprisonment range was 151 to
188 months, and the statutory range was a term of
imprisonment of not more than 20 years. [Id. at
¶¶ 73, 74]. The Court sentenced Petitioner to a
term of 120 months' imprisonment and a term of 3 years of
supervised release. [CR Doc. 56 at 2-3: Judgment]. Judgment
was entered on Petitioner's conviction on June 18, 2010.
[CR Doc. 56: Judgment]. Petitioner appealed his conviction
and sentence to the Fourth Circuit Court of Appeals, which
affirmed this Court's judgment. [CR Doc. 72].
20, 2016, Petitioner filed a Section 2255 Motion to Vacate,
Set Aside, or Correct Sentence, which was denied and
dismissed on the merits. [CR Docs. 83, 85]. The Fourth
Circuit Court of Appeals dismissed Petitioner's
subsequent appeal and denied a certificate of appealability.
[CR Docs. 86, 88]. On or about January 16, 2018, Petitioner
completed his custodial term of incarceration, and his
three-year term of supervised release began. [See CR
Doc. 90 at 1: Petition for Warrant for Offender Under
Supervision]. On October 11, 2018, the U.S. Probation Office
filed a supervised release violation alleging that Petitioner
committed several new law violations in relation to a motor
vehicle accident that was caused by Petitioner. These
violations included driving while impaired and failure to
stop at a red light, both Grade C violations; and misdemeanor
possession of a Schedule II controlled substance and leaving
the scene of an accident, both Grade B violations. [CR Doc.
90 at 2]. A United States Magistrate Judge thereafter issued
a warrant for Petitioner's arrest. [Id. at 6].
was arrested on December 20, 2018. Petitioner's initial
appearance on the revocation of supervised release was held
on December 21, 2018. On March 31, 2019, the Court held a
hearing on the revocation of Petitioner's supervised
release. Present at the hearing were Petitioner, his
attorney, and counsel for the Government. At the hearing,
Petitioner admitted to the new law violations. [Doc. 107 at
3: Revocation Hearing Tr.]. The Court determined, and counsel
for both parties agreed, that based on Petitioner's
criminal history category of VI and the statutory maximum for
a term of incarceration after a class C felony, the guideline
range was limited to between 21 and 24 months. [Id.
at 3-4]. After hearing arguments of counsel and
Petitioner's statement to the Court, the Court revoked
Petitioner's supervised release and sentenced Petitioner
to a term of 14 months' imprisonment, below the guideline
range. [Id. at 4-13]. The Court also noted, after
being advised by his courtroom clerk, that an outstanding
balance of $14, 504 for attorney fees remained from the prior
Judgment and that the Court would include that balance in the
judgment on Petitioner's revocation proceeding.
[Id. at 16-17].
filed the instant § 2255 Motion to Vacate on September
20, 2019 challenging his revocation proceedings and the
judgment thereon.[CV Doc. 1].
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 conducting its initial review and 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).
raises four claims in his motion to vacate. Specifically,
Petitioner argues that: (1) the Court violated
Petitioner's Sixth Amendment right by “us[ing] an
element to increase the penalty of the original crime of
conviction with-out [sic] the juries findings of the
fact beyond a reasonable doubt, ” (2) his counsel was
ineffective for leaving the courtroom “while
restriction and fines for attorneys fees were retroactively
applied to the original sentence of 2010, ” (3) the
Court erred in allowing the proceedings to continue without
the presence of counsel during the “assessment”
of the fees, and (4) the Court abused its discretion in
allowing the clerk to discover the fine that remained
outstanding from the original Judgment. [CV Doc. 1 at 4-8].
Petitioner, however, does not specify what relief he is
seeking from the Court. [CV Doc. 1 at 12].
evaluating the Petitioner's motion, the Court will group
the claims into the following two categories: (1)
Petitioner's claim regarding the Court's alleged
decision to increase the penalty for his original crime of
conviction and (2) Petitioner's claims regarding the
Penalty Increase ...