Lambert v. USA

Filing 9

MEMORANDUM OF DECISION AND ORDER that Government's Motion to Dismiss 6 is GRANTED, and 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence (2255) is DENIED and DISMISSED WITH PREJUDICE. Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 8/14/2017. (Pro se litigant served by US Mail.)(khm) (Main Document 9 replaced on 8/15/2017) (khm).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00177-MR
CRIMINAL CASE NO. 2:12-cr-00008-MR-DLH-1

ADAM CHRIS LAMBERT,

)
)
Petitioner,
)
)
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] and the
Government’s Motion to Dismiss [Doc. 6].
BACKGROUND
On August 1, 2012, Petitioner pled guilty in this Court to possession of
a firearm by a felon. [Crim. Case No. 2:12-cr-00008-MR-DLH-1 (“CR”), Doc.
20: Acceptance and Entry of Guilty Plea]. The presentence report (“PSR”)
noted that Petitioner had two prior convictions that triggered an
enhancement to his base offense level under U.S.S.G. § 2K2.1(a)(2): (1) a
1999 federal conviction for aggravated assault within the Great Smoky
Mountains National Park (out of the Eastern District of Tennessee); and (2)

a 2003 North Carolina conviction for robbery with a dangerous weapon. See
[CR Doc. 25 at ¶ 15: PSR]. Based on the § 2K2.1 enhancement, Petitioner
faced a Guidelines range of 70 to 87 months. [Id. at ¶ 79]. On December
11, 2013, this Court imposed a sentence of 70 months. [CR Doc. 28:
Judgment]. Petitioner did not appeal.
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 June 17, 2016, Petitioner filed the pending motion to vacate,
through the Federal Defender as counsel, raising a Johnson claim. In the
motion to vacate, Petitioner argues that, under Johnson, his prior conviction
for aggravated assault no longer qualifies as a predicate for a base-offense
level enhancement under U.S.S.G. § 2K2.1(a). [Doc. 1 at 4].
On August 2, 2016, the Court placed Petitioner’s motion in abeyance
pending the outcome of Beckles v. United States, Supreme Court No. 158455, in which petitioner argued that his career-offender sentence was
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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 2, 2017, the Government
filed the pending motion to dismiss, arguing that Petitioner’s Johnson
challenge to his enhanced sentence under U.S.S.G. § 2K2.1(a) has no
validity in light of Beckles. [Doc. 6]. On May 30, 2017, the Court granted the
Federal Defender’s motion to withdraw from representation of Petitioner.
[Doc. 8]. In the Court’s order, the Court gave Petitioner twenty days to file a
pro se response to the Government’s motion to dismiss. [Id.]. Petitioner has
not responded and the time to do so has passed.
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).
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DISCUSSION
As noted, Petitioner challenges his enhanced sentence under U.S.S.G.
§ 2K2.1(a), in light of Johnson. In Beckles, however, the Supreme Court
held that “the advisory Guidelines are not subject to vagueness challenges.”
137 S. Ct. 886, 890 (2017). Thus, the holding in Beckles has foreclosed
Petitioner’s Johnson claim, and the Court will therefore deny and dismiss the
petition and grant the Government’s motion to dismiss.1
The Court finds that the Petitioner has not made a substantial showing
of a denial of a constitutional right. See generally 28 U.S.C. § 2253(c)(2);
see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy
§ 2253(c), a “petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or
wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). Petitioner
has failed to demonstrate both that this Court’s dispositive procedural rulings
are debatable, and that the Motion to Vacate states a debatable claim of the
denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). As a result, the Court declines to issue a certificate of appealability.

In any event, it appears that Petitioner’s challenge to his sentence is moot because the
Bureau of Prisons website indicates that Petitioner was released from custody on May 9,
2017, and his current listed address is now a private address in Cherokee, North Carolina.
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See Rule 11(a), Rules Governing Section 2255 Proceedings for the United
States District Courts, 28 U.S.C. § 2255.
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 the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: August 14, 2017

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