Charles v. United States of America
Filing
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MEMORANDUM OF DECISION AND ORDER granting Govt's 6 Motion to Dismiss, and denying and dismissing with prejudice Petitioner's 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Court issues Certificate of Appealability limited solely to review of Petitioner's sentence on Count Three; Certificate of Appealability denied in all other respects. Signed by District Judge Martin Reidinger on 9/01/2017. (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00136-MR
CRIMINAL CASE NO. 2:04-cr-00027-MR-DLH-1
ROGER DALE CHARLES, II,
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)
Petitioner,
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)
vs.
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UNITED STATES OF AMERICA, )
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Respondent.
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)
MEMORANDUM OF
DECISION AND ORDER
This matter is before the Court on Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1]; the
Government’s Motion to Dismiss [Doc. 6]; and Petitioner’s Response to
Government’s Motion to Dismiss [Doc. 7].
BACKGROUND
A federal grand jury indicted Petitioner in April 2004 and charged him
with possession with intent to distribute crack cocaine and aiding and
abetting the same, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2
(Count One); possession of a firearm in furtherance of a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c) (Count Two); and possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count
Three). [Criminal Case No. 2:04-cr-00027 (“CR”), Doc. 2]. That same day,
the Government filed an Information in accordance with 21 U.S.C. § 851 (“§
851 Notice”), notifying Petitioner and this Court that the Government
intended to seek an enhanced sentence based on Petitioner’s prior drugtrafficking conviction.1 [CR Doc. 3].
A jury convicted Petitioner of Counts One and Three; he was acquitted
of Count Two. [CR Doc. 55]. Following the jury’s verdict, the probation office
prepared a presentence report (“PSR”) in which the probation officer
calculated a combined adjusted offense level of 33 for Counts One and
Three. [CR PSR at ¶ 46]. The probation officer noted that Petitioner qualified
as a career offender under U.S.S.G. § 4B1.1, thereby elevating his total
offense level to 37.
[Id. at ¶¶ 47, 49]. The probation officer further noted
that, for the purpose of Count Three, Petitioner also qualified as an armed
career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”), and U.S.S.G. § 4B1.4. [Id.]. This enhancement, however, would
1
The Government referenced two prior drug trafficking convictions in the § 851 Notice;
however, in preparing the Presentence Report, the probation officer could not confirm
one of those convictions. Accordingly, only one of Petitioner’s prior felony drug
convictions was ultimately cited in support of the enhancement. [See PSR at ¶ 2].
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have yielded a total offense level of 34, which was lower than the offense
level calculated based on the career offender offense level. See U.S.S.G. §
4B1.4(b)(1)(3)(A) (2004). Accordingly, the higher career offender offense
level was applied. Based on a total offense level of 37 and a criminal-history
category of VI, the probation officer calculated an advisory Sentencing
Guidelines range of between 360 months and life in prison for both counts of
conviction.2 [PSR at ¶ 110].
This Court adopted the presentence report without change and
sentenced Petitioner to 360 months’ imprisonment on each count, to run
concurrently, and a term of ten years of supervised release on Count One
and a term of three years of supervised release on Count Three, also to run
concurrently.3
[CR Doc. 64].
The Fourth Circuit affirmed Petitioner’s
conviction and sentence. United States v. Charles, 195 F. App’x 133 (4th
Cir. 2006).
2
By statute, the term of imprisonment for Count One was not less than 20 years nor more
than life. See 21 U.S.C. §§ 841(b)(1)(A) and 851. The term of imprisonment for Count
Three was not less than 15 years nor more than life. See 18 U.S.C. §§ 922(g)(1) and
924(e)(1).
3
By statute, the term of supervised release for Count One was at least ten years. See
21 U.S.C. §§ 841(b)(1)(A) and 851. The term of supervised release for Count Three was
not more than five years. See 18 U.S.C. § 3583(b)(1).
3
On June 26, 2015, the Supreme Court held in Johnson v. United States
that the residual clause of the Armed Career Criminal Act (“ACCA”) — which
covered any offense that “otherwise involves conduct that presents a serious
potential risk of physical injury to another” — is “unconstitutionally vague.”
135 S. Ct. 2551, 2557 (2015). Based on that holding, the Court concluded
that “imposing an increased sentence under the residual clause . . . violates
the Constitution’s guarantee of due process.” Id. at 2563.
On May 17, 2016, Petitioner filed the pending motion to vacate his
sentence, arguing that, in light of Johnson, he was improperly sentenced as
a career offender and an armed career criminal. [Doc. 1]. On August 8,
2016, the Court placed Petitioner’s motion in abeyance pending the outcome
of Beckles v. United States, Supreme Court No. 15-8455, in which petitioner
argued that his career-offender sentence was erroneously enhanced by an
unconstitutionally vague residual clause of U.S.S.G. § 4B1.2. [Doc. 5]. On
March 6, 2017, the Supreme Court held in Beckles that “the advisory
Guidelines are not subject to vagueness challenges.” 137 S. Ct. 886, 890
(2017).
On May 4, 2017, the Government filed the pending motion to
dismiss, arguing that, in light of Beckles, Petitioner’s motion to vacate should
be dismissed. [Doc. 6]. Petitioner filed a response through counsel on May
16, 2017. [Doc. 7].
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STANDARD OF REVIEW
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 motion to vacate 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).
DISCUSSION
As noted, Petitioner challenges his designations as both a career
offender and an armed career criminal in light of Johnson. Petitioner’s
challenge to his career offender status, however, is foreclosed by the
Supreme Court’s decision in Beckles. See Beckles v. United States, 137 S.
Ct. 886, 890 (2017) (holding that “the advisory Guidelines are not subject to
vagueness challenges.”). Accordingly, Petitioner’s motion is denied and
dismissed insofar as he attempts to challenge to his designation as a career
offender.
The Government does not specifically address whether Petitioner’s
classification as an armed career criminal is now infirm under Johnson.
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Instead, the Government argues that Petitioner’s designation as an armed
career criminal is irrelevant because his sentence was based on his
classification as a career offender, not an armed career criminal.
The
Government further argues that, even if Petitioner’s sentence on Count
Three were improperly enhanced under the ACCA, the Court should decline
to review his sentence because his ultimate term of imprisonment (360
months) is unaffected by the alleged improper enhancement. Further, the
Government argues, Petitioner has not identified any potential adverse
consequences resulting from his classification as an armed career criminal.
[Doc. 6 at 3-4].
In response, Petitioner contends that because his sentence on Count
Three was improperly enhanced under the Armed Career Criminal Act, the
appropriate remedy would be to vacate both sentences and conduct a full
resentencing. [Doc. 7 at 2]. In so arguing, Petitioner cites United States v.
Smith, 115 F.3d 241, 245 (4th Cir. 1997). Smith, however, has no application
to this case. It stands for the proposition that where a defendant is convicted
on two counts and sentenced to consecutive terms of imprisonment and then
one of those convictions is vacated, then the Court has jurisdiction to revisit
the sentence on the remaining conviction because the prior sentence may
have been adjusted to achieve a more appropriate aggregate sentence of
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the two prior sentences. Petitioner herein was not sentenced to consecutive
terms, but rather to concurrent terms.
The Court finds no basis to vacate the sentence on Count One.
Petitioner’s sentence on Count One was properly enhanced due to his status
as a career offender. The Guidelines range for this offense was 360 months
to life, and the Court sentenced him to the low end of this Guidelines range.
Even assuming that the sentence on Count Three were vacated, the Court
would have no reason to revisit its determination of the appropriate sentence
on Count One.
Having determined that Petitioner is not entitled to resentencing on
Count One, the Court must still determine whether review of the sentence on
Count Three is required. The collateral sentence doctrine permits the Court
to decline to review a sentence for one count of conviction when a concurrent
sentence on another conviction is found to be valid. See United States v.
Bradley, 644 F.3d 1213, 1293-94 (11th Cir. 2011) (declining to address
defendant’s challenge to his sentence on one count of conviction where the
court affirmed a concurrent sentence because the defendant’s “ultimate term
of imprisonment would not change even were [the court] to find error” and
the defendant “would suffer no adverse collateral consequences”); United
States v. Hill, 859 F.2d 325, 326 (4th Cir. 1988) (noting that the concurrent
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sentence doctrine “provides that where a defendant is serving concurrent
sentences and one conviction is shown to be valid, the court may decline to
pass upon the validity of the other conviction” with “a showing that the
defendant will suffer no harm by letting both the valid and unreviewed
convictions stand”).
Here, Petitioner urges the Court to vacate the sentence on Count
Three, arguing that there are potential adverse collateral consequences
resulting from the improper enhancement of that sentence. Specifically,
Petitioner points out that, as a result of the ACCA enhancement, his
conviction on Count Three was classified as a Class A felony instead of a
Class C felony.
Consequently, Petitioner argues, that after he completes
his term of imprisonment, if his term of supervised release were to be
revoked, the Court could require him to serve up to a term of five years’
imprisonment as to that count.
That is the term of supervised release
permitted for Class A felonies, see 18 U.S.C. § 3583(b)(1), as opposed to a
maximum term of two years’ imprisonment for Class C felonies, see 18
U.S.C. § 3583(e)(3). However, Petitioner’s conviction on Count One is also
a Class A felony. Thus he is already subjected to a potential sentence of
five years upon revocation – if his new violative conduct were to be that
serious. Petitioner argues, however, that this is not the end of the analysis.
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He says that such future hypothetical violation might be so serious that the
Court could sentence him to consecutive terms of incarceration for the
violation as it relates to Count One and as it relates to Count Three. For
instance, during the first five years of supervised release (while Petitioner
would be on supervised release for both Counts One and Three)4 if he were
to violate, the Court could sentence Petitioner up to five years’ imprisonment
on Count One and up to five years on Count Three and could theoretically
make these sentences consecutive, for a total of 120 months. Petitioner
argues that if the error he asserts is corrected that such a “boxcar scenario”
would be limited to five years plus two years (i.e., a total of 84 months).
While the scenario posed by Petitioner is technically possible, the
factors that would have to line up to support such a result make it implausible.
The maximum Guidelines range for the most serious violation of supervised
release calls for a term of incarceration of 51 to 63 months. See U.S.S.G. §
7b1.4(a). In order for that Guidelines range to apply, Petitioner would have
to commit a Grade A violation while on supervised release; and that Grade
A violation would have to be so serious that the Court would have to upwardly
vary in order to impose a sentence of more than 84 months, i.e. an upward
4
After the expiration of the shorter term of supervised release this scenario would be
impossible.
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variance of at least one-third over the top of the recommended Guidelines
range. Petitioner has not even attempted to articulate what circumstances
might give rise to such a possibility. Such a hypothetical scenario is simply
too speculative to be considered a realistic potential adverse collateral
consequence requiring review of Petitioner’s sentence on Count Three.
In sum, for the reasons stated herein, the Court grants the
Government’s motion to dismiss. The Court will, however, issue a Certificate
of Appealability limited solely to the review of Petitioner’s sentence on Count
Three.
ORDER
IT IS, THEREFORE, ORDERED that the Government’s Motion to
Dismiss [Doc. 6] is GRANTED, and Petitioner’s Motion to Vacate, Set Aside,
or Correct Sentence [Doc. 1] is DENIED and DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that, pursuant to Rule 11 (a) of the Rules
Governing Section 2255 Cases, the Court issues a Certificate of
Appealability limited solely to the review of Petitioner’s sentence on Count
Three. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a certificate of
appealability should issue if “reasonable jurists could debate whether (or, for
that matter, agree that) the petitioner should have been resolved in a different
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manner or that the issues presented were adequate to deserve
encouragement to proceed further.”) (internal citations and quotations
omitted). The Certificate of Appealability is denied in all other respects.
IT IS SO ORDERED.
Signed: September 1, 2017
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