Owens v. USA

Filing 4

ORDER granting 3 Motion to Stay. This matter is hereby held in abeyance pending the Supreme Court's decision in Beckles.Thereafter, the government shall have 60 days from the date the SupremeCourt decides Beckles within which to file its response in this matter. Signed by District Judge Martin Reidinger on 09/01/16. (emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-CV-00180-MR
CRIMINAL CASE NO. 1:14-CR-00018-MR-DLH-1

SHANNON MACK OWENS,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the motion of the United States
requesting that the Court enter an order holding this action in abeyance. [CV
Doc. 3].1 According to the government’s motion, defense counsel does not
object to its request. [Id.].
Petitioner was convicted by plea of possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g)(1). [CR Doc. 23]. The presentence
report noted that Petitioner had two, prior qualifying North Carolina
convictions -- (1) a 2005 North Carolina conviction for breaking and entering,

1

Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV” denoting the document is listed on the docket in the
civil case file number 1:16-cv-180-MR, or the letters “CR” denoting the document is listed
on the docket in the criminal case file number 1:14-cr-18-MR-DLH-1.

and (2) a 2008 North Carolina consolidated conviction for sell/deliver a
schedule II controlled substance, possession with intent to manufacture, sell
or

deliver

a

schedule

II

controlled

substance,

and

maintain

vehicle/dwelling/place for controlled substance (as a single predicate) –
which triggered an enhancement to his base offense level under Section
2K2.1(a)(4) of the Sentencing Guidelines. Based on the Section 2K2.1
enhancement, Petitioner faced a Guidelines range of 77 to 96 months of
imprisonment.

This Court imposed a sentence of 63 months of

imprisonment. [Id.].
On June 19, 2016, Petitioner commenced this action by filing a petition
pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his petition, Petitioner
contends that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015),
his prior conviction under North Carolina law for breaking and entering no
longer qualifies as a predicate for a base-offense-level enhancement under
Section 2K2.1(a). [Id. at 3-4]. Consequently, Petitioner argues that his
sentence enhancement is unlawful in light of Johnson. [Id.].
In response to the petition, the government has filed a motion to hold
this proceeding in abeyance. [CV Doc. 3]. The government contends that
this case will be affected by the Supreme Court’s decision next Term in
Beckles v. United States, 616 Fed. Appx. 415 (11th Cir.), cert. granted, 2016
2

WL 1029080 (U.S. June 27, 2016) (No. 15-8544). [Id. at 2]. One of the
questions presented in Beckles is whether Johnson applies retroactively to
cases collaterally challenging federal sentences enhanced under the
residual clause in U.S.S.G. § 4B1.2(a)(2). The residual clause invalidated in
Johnson is identical to the residual clause in the Career Offender provision
of the Guidelines, § 4B1.2(a)(2) (defining "crime of violence"). In turn, the
residual clause in Section 4B1.2(a)(2) is incorporated by reference under
Section 2K2.1 comment note 1.
Based upon the reasons given by the government, and without
objection by Petitioner, the Court concludes that the government’s motion
should be granted.
ORDER
IT IS, THEREFORE, ORDERED that the government’s motion to place
this case in abeyance [CV Doc. 3], is hereby GRANTED and this matter is
hereby held in abeyance pending the Supreme Court’s decision in Beckles.
Thereafter, the government shall have 60 days from the date the Supreme

3

Court decides Beckles within which to file its response in this matter.
IT IS SO ORDERED.

Signed: September 1, 2016

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