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. No. 1), in which he raises a claim
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). The Government agrees that the § 2255 Motion to
Vacate should be granted and argues that the Government
should be relieved of its obligations under the plea
agreement and that Petitioner should be resentenced under the
sentencing package doctrine, (Doc. No. 10).
was one of 26 individuals charged in a 70-count Third
Superseding Indictment relating to a RICO conspiracy.
See (3:08-cr-134, Doc. No. 623). Petitioner pled
guilty in the underlying criminal case to: Count (1),
conspiracy to commit racketeering; and Count (64), using and
carrying a firearm during and in relation to a crime of
violence, i.e., racketeering conspiracy in violation
of 18 U.S.C. § 1962(d) and witness intimidation in
violation of 18 U.S.C. § 1512(b)(1), (18 U.S.C. §
924(c)(1)). (Id., Doc. Nos. 586, 623). As part of
his guilty plea, Petitioner waived his direct appeal and
post-conviction rights except for claims of prosecutorial
misconduct and ineffective assistance of counsel.
See (Id., Doc. No. 586 at 6). The Plea
Agreement provides that the parties will make certain
guideline calculation recommendations and will also recommend
a sentence within the applicable guideline range.
(Id., Doc. No. 586 at 4).
Presentence Investigation Report (“PSR”) scored
the combined base offense level as 36 after applying the
multiple-count adjustment. (Id., Doc. No. 939 at
¶ 36). Three levels were deducted for acceptance of
responsibility, resulting in a total offense level of 33.
(Id., Doc. No. 939 at ¶ 94-95). No. Chapter
Four enhancement was applied. (Id., Doc. No. 939 at
¶ 93). Petitioner had one criminal history point and a
criminal history category of I. (Id., Doc. No. 939
at ¶ 100). The resulting advisory guideline range was
135 to 168 months' imprisonment plus a minimum mandatory
consecutive sentence of not less than 5 years for the §
924(c) conviction. (Id., Doc. No. 939 at ¶
Court adopted the PSR without change and sentenced Petitioner
within the advisory range to a total of 222 months'
imprisonment comprised of 162 months for Counts (1) and 60
months for Count (64), consecutive. (Id., Doc. No.
1203); see (Id., Doc. No. 1204). Petitioner
raised sentencing claims on direct appeal and Petitioner
argued that the Government's breach of the plea agreement
invalidated his appeal waiver. The Fourth Circuit found that
Petitioner “clearly breached the provision in his plea
agreement that required him to provide full cooperation,
thereby releasing the Government from any obligation to seek
a lower sentence for him, ” and that the Government did
not breach the plea agreement. United States v.
Canales-Reyes, 454 Fed.Appx. 208 (4th Cir.
2011). Therefore, it concluded, Petitioner's appeal
waiver is enforceable and the Fourth Circuit accordingly
dismissed Petitioner's appeal. Id.
filed the instant § 2255 Motion to Vacate through
counsel on June 14, 2016. (Doc. No. 1). He argues that the
§ 924(c) conviction and sentence violates due process
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). (Doc. No. 1). This § 2255 case was stayed for
several years during the pendency of United States v.
Ali, Fourth Circuit No. 15-4433, (Doc. No. 4), and the
stay was lifted after the United States Supreme Court issued
its decision in United States v. Davis, 139 S.Ct.
2319 (2019), (Doc. No. 8). Petitioner filed a Supplemental
Memorandum in support of the § 2255 Motion to Vacate
pursuant to Davis and United States v.
Simms, 914 F.3d 229 (4th Cir. 2019) (en
Government concedes that the § 924(c) conviction should
be vacated pursuant to Davis and Simms and
argues that Petitioner should be resentenced on the remaining
count pursuant to the sentencing package doctrine. (Doc. No.
10). The Government further argues that it should be released
from its sentencing-related obligations at resentencing due
to Petitioner's breach of the Plea Agreement.
SECTION 2255 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). Rule 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 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).
Johnson v. United States, 135 S.Ct. 2551 (2015), the
United States Supreme Court announced that the Armed Career
Criminal Act's (“ACCA”) residual
clause is void for vagueness, which is a
retroactively applicable right. Id.; Welch v.
United States, 136 S.Ct. 1257, 1265 (2016). The Supreme
Court recently held that § 924(c)(3)(B)'s residual
clause is unconstitutionally vague under the
principles set forth in Johnson. See United
States v. Davis, 139 S.Ct. 2319 (2019).
§ 924(c) conviction can only withstand Johnson
and Davis if the predicate offenses satisfy §
924(c)'s force clause. The Government correctly concedes
that the offenses underlying Petitioner's § 924(c)
conviction do not constitute crimes of violence under §
924(c)'s force clause. Racketeering conspiracy does not
have as an element the use, attempted use, or threatened use
of physical force. See generally United States v.
Simms, 914 F.3d 229 (4th Cir. 2019) (Hobbs
Act conspiracy does not categorically qualify as a crime of
violence under § 924(c)'s force clause because the
offense only requires an agreement that does not invariably
require the actual, attempted, or threatened use of physical
force); see, e.g., United States v.
Jones, 935 F.3d 266 (5th Cir. 2019) (finding
that RICO conspiracy is not a crime of violence under §
924(c)); United States v. Davis, 2019 WL 3991883
(9th Cir. Aug. 23, 2019) (same). The same is true
for witness intimidation under § 1512(b)(1) which
requires proof only of “intimidation, threat[s], or
corrupt persua[sion]” or “misleading conduct
toward another person” but not the use or threat of
physical harm. 18 U.S.C. § 1512(b). See generally
United States v. Banks, 884 F.3d 998 (10th
Cir. 2018) (witness tampering under § 1512(b)(1) does
not require a direct threat of physical harm). Cf. United
States v. Mathis, 932 F.3d 242, 265 (4th Cir.
2019) (holding that witness tampering by murder
under 18 U.S.C. § 1512(a)(1)(C) is categorically a crime
of violence under § 924(c)).
Government argues that it should be released from its
sentencing-related obligations under the Plea Agreement due
to Petitioner's breach of that agreement. The Fourth
Circuit squarely resolved this issue on direct appeal,
finding that Petitioner “clearly breached” the
plea agreement, “thereby releasing the
Government” from its sentencing obligations with
regards to him. Canales-Reyes, 454 ...