White v. USA

Filing 5

ORDER granting 4 Motion to Stay. Signed by Chief Judge Frank D. Whitney on 8/19/16. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:16-cv-00428-MR
CRIMINAL CASE NO. 3:07-cr-00286-MR-1

MARK STROUD WEDDING,

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

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. 4].1 According to the government’s motion, defense counsel does not
object to its request. [Id.].
Petitioner was convicted by plea of interference with commerce by
threats or violence, in violation of 18 U.S.C. § 1951, and possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [CR Doc.
28]. The presentence report noted that Petitioner had prior qualifying North

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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 3:16-cv-428-MR, or the letters “CR” denoting the document is listed
on the docket in the criminal case file number 3:07-cr-286-MR-1.

Carolina convictions that triggered the Career Offender enhancement under
section 4B1.2 of the Sentencing Guidelines. The Court sentenced Petitioner
as a Career Offender to a total term of imprisonment of 188 months. [Id.].
On June 20, 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),
three of his prior convictions under North Carolina law, for breaking and
entering, escape, and attempted common law robbery, no longer qualify as
a “crime of violence” under the Guidelines. [Id. at 3-6]. Consequently,
Petitioner argues his Career Offender designation is improper and thus his
sentence is unlawful. [Id.].
In response to the petition, the government has filed a motion to hold
this proceeding in abeyance. [CV Doc. 4]. The government notes 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 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

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is identical to the residual clause in the Career Offender provision of the
Guidelines, § 4B1.2(a)(2) (defining "crime of violence").
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. 4], 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
Court decides Beckles within which to file its response in this matter.
IT IS SO ORDERED.

Signed: August 19, 2016

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