Wise v. USA
Filing
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ORDER granting Motion to Vacate, Set Aside or Correct Sentence (2255). Defendant's term of imprisonment is reduced to time served, all other terms and conditions remain the same. Signed by Chief Judge Frank D. Whitney on 4/18/17. (clc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-19-FDW
(3:04-cr-39-FDW-3)
BRIAN JEROME WISE,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
__________________________________________)
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. No. 2). Petitioner is represented by Ann L. Hester
of the Federal Defenders of Western North Carolina.
I.
BACKGROUND
Petitioner Brian Jerome Wise was indicted for conspiracy to possess with intent to distribute
five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), 846 (Count One); two counts of possession with intent to distribute five
grams or more of cocaine base, in violation of 21 U.S.C. § 841 (Counts Ten and Eleven); and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count
Twelve). See (Crim. Case No. 3:04-cr-39-FWD-3, PSR at ¶ 1). The Government filed a notice
of intention to seek enhanced penalties under 21 U.S.C. § 851, citing Petitioner’s two prior North
Carolina drug convictions: a 1996 conviction for possession of cocaine and a 2002 conviction for
possession with intent to sell or deliver cocaine. (Id., Doc. No. 269: 851 Notice).
Petitioner agreed to plead guilty to Count One in exchange for the dismissal of the other
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charges against him.1 See (Id., Doc. No. 170 at ¶¶ 1-2: Plea Agrmt.). As part of Petitioner’s plea
agreement, he agreed that he was responsible for at least 500 grams, but less than 1.5 kilograms
of cocaine base. (Id. at ¶ 7(a)). The parties also agreed to limit the enhancements that would
apply to Petitioner’s offense level. (Id. at ¶ 7(b)-(e)). Petitioner waived the right to contest his
conviction or sentence on appeal or in any post-conviction proceeding, except as to claims of
ineffective assistance of counsel, prosecutorial misconduct, or the imposition of a sentence
inconsistent with the guidelines stipulations in the plea agreement. (Id. at ¶ 20). After a plea
hearing, the magistrate judge accepted Petitioner’s guilty plea, finding that it was knowingly and
voluntarily made. (Id., Doc. No. 176: Entry and Acceptance of Guilty Plea).
A probation officer prepared a presentence report, recommending that, based on the
amount of drugs involved in the offense, Petitioner’s base offense level was 36 and that he
should receive a three-level reduction for acceptance of responsibility, resulting in a total offense
level of 33. (Id., PSR at ¶¶ 34-35, 41-42). The probation officer found that Petitioner had seven
criminal history points—five points based on his prior convictions and two points for having
committed the instant offense while on probation. (Id. at ¶¶ 55-56). Accordingly, Petitioner’s
criminal history category was IV. (Id. at ¶ 57). The guidelines range of imprisonment for
offense level 33 and criminal history category IV was 188 to 235 months. (Id. at ¶¶ 87-88).
However, because of the mandatory minimum term of imprisonment in light of Petitioner’s two
prior felony drug convictions, the guidelines term of imprisonment was life. (Id.).
At sentencing, this Court granted the Government’s motion to withdraw Petitioner’s 1996
Although the plea agreement appears to contain a typographical error, the judgment shows that
Petitioner pleaded guilty to Count One and that Counts 10 to 12 were dismissed. See (Crim.
Case No. 3:04-cr-39-FWD-3, Doc. No. 279: Judgment).
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drug conviction from the § 851 notice. See (Id., Docket entries dated July 5, 2006). This
reduced the mandatory minimum term of imprisonment, as well as the guidelines range, to 240
months of imprisonment. See (Id.). This Court sentenced Petitioner to 240 months of
imprisonment on July 5, 2006. (Id., Doc. No. 279: Judgment). Petitioner did not appeal. This
Court subsequently denied three motions by Petitioner for reduction of sentence under 18 U.S.C.
§ 3582 based on amendments to the guidelines. See (Id., Doc. Nos. 358, 398, 444).
Petitioner filed the pending motion to vacate through counsel on January 17, 2017. (Doc.
No. 2). Petitioner argues that the statutory mandatory minimum sentence of 240 months should
not apply because, in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc),
his prior North Carolina conviction for possession with intent to sell or deliver cocaine no longer
qualifies as a felony drug offense. (Id.). The Government has now responded and concedes that
Petitioner is entitled to sentencing relief.
II. STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are
directed to promptly examine motions to vacate, along with “any attached exhibits and the record
of prior proceedings” in order to determine whether a petitioner is entitled to any relief. The Court
has considered the record in this matter and applicable authority and concludes that this matter can
be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th
Cir. 1970).
III.
DISCUSSION
Under 28 U.S.C. § 2255(f)(1), a § 2255 motion must be filed within one year of “the date on
which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Here, Petitioner did
not file the petition within one year of when his conviction became final. Thus, the petition is
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untimely under § 2255(f)(1). The Government states, however, that it is waiving the statute of
limitations. The Government also states that it does not seek to enforce the waiver provision in
Petitioner’s plea agreement. Thus, the Court may address the merits of Petitioner’s claim.
Section 841 of Title 21 provides for enhanced sentences based on any prior “felony drug
offense.” That term is defined in Section 802(44) as “an offense that is punishable by
imprisonment for more than one year under [any state or federal law relating to narcotics or
marijuana].” In Simmons, the Fourth Circuit held than an offense qualifies as a “felony drug
offense” for purposes of Section 841(b)(1) and is punishable by more than one year in prison
only if the defendant could have received a sentence of more than one year in prison, overturning
its earlier decisions in United States v. Jones, 195 F.3d 205 (4th Cir. 1999), and United States v.
Harp, 406 F.3d 242 (4th Cir. 2005), in which the Fourth Circuit held that an offense is
punishable by more than one year in prison as long as any defendant could receive a term of
imprisonment of more than one year upon conviction for that offense. Thus, under Simmons, for
purposes of a qualifying predicate conviction under Section 841(b)(1), a predicate conviction is
not “punishable for a term exceeding one year” unless the defendant could have received a
sentence of more than one year in prison under the North Carolina Structured Sentencing Act.
Here, the Court enhanced Petitioner’s sentence based on his prior North Carolina conviction
for possession with intent to sell or deliver cocaine, a Class H crime. See N.C. GEN. STAT. § 9095 (2000). Petitioner had a prior record level of II, and he received an 8-10 month suspended
sentence for this offense. (Civ. Doc. No. 2-3). Under the North Carolina Structured Sentencing
Act, N.C. GEN. STAT. § 15A-1340.17(c)-(d) (2000), Petitioner could not have received a sentence
of more than one year in prison for this conviction. Accordingly, although Jones and Harp were
still good law at the time this Court sentenced Petitioner, Simmons has made clear that
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Petitioner’s prior conviction for possession with intent to sell or deliver cocaine was not a
“felony drug offense” for purposes of 21 U.S.C. § 841(b)(1), because it was not punishable by
more than one year in prison.
With respect to Petitioner’s claim for relief in this proceeding, in Hicks v. Oklahoma, 447
U.S. 343 (1980), the Supreme Court held that the Due Process Clause is violated when the
sentencing court is erroneously deprived of any discretion to sentence a defendant below an
erroneously applied statutory mandatory minimum sentence. Id. at 346. Here, Petitioner’s
guidelines range without the mandatory minimum term was 188-235 months of imprisonment.
See (Crim. Case No. 3:04-cr-39-FWD-3, PSR at ¶ 88). The Government concedes in its
response Petitioner’s exposure to the mandatory minimum may have affected the final
determination of his sentence. The Government further concedes that the application of the
mandatory minimum of 240 months of imprisonment deprived this Court of discretion and
because, without application of the mandatory minimum, this Court may well have sentenced
Petitioner to a sentence below 240 months of imprisonment. The Government states that it
concedes, therefore, that Petitioner was sentenced in violation of the Due Process Clause as
established in Hicks, and Petitioner is entitled to be resentenced.
The Court agrees with the parties that Petitioner is entitled to resentencing based on the
Government’s concession and waiver of the one-year limitations period. The Court will
therefore grant the motion to vacate, and Petitioner shall be resentenced without application of a
mandatory minimum of 240 months of imprisonment. Furthermore, as Petitioner notes, without
application of the mandatory minimum of 240 months of imprisonment, Petitioner is eligible for
a reduction to offense level 29 under the revised drug Guidelines, which results in a sentencing
range of 121-151 months of imprisonment. (Doc. No. 2 at 4). Petitioner has been in custody
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since April 29, 2005. See (Id.). Thus, if resentenced in the corrected range, he is eligible for
immediate release. The Court finds that Petitioner is entitled to be resentenced at an offense
level 29, with a sentencing range of 121-151. Because he has already served this amount of
time, Petitioner is resentenced to time-served.
IV.
CONCLUSION
For the reasons stated herein, the Court grants Petitioner’s motion to vacate, and Petitioner is
resentenced to time-served in accordance with this order. Therefore, Petitioner is entitled to
release from custody.
IT IS, HEREBY, ORDERED, ADJUDGED, AND DECREED that
(1)
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 2), is GRANTED; and Petitioner is reresentenced to time-served in accordance with this Order.
(2)
Petitioner is therefore ORDERED released from the custody of the United
States Bureau of Prisons and/or the custody of the U.S. Marshals Service.
Petitioner’s term of supervised release shall remain in place.
(3)
To allow the Bureau of Prisons/United States Marshal/Pretrial Service
adequate time, such are allowed up to ten days to comply with this order.
(4)
The Clerk of Court shall certify copies of this Order to the U.S. Bureau of
Prisons, U.S. Marshals Service, and the U.S. Probation and Pretrial Services
Office.
Signed: April 18, 2017
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