Caldwell v. USA

Filing 2

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255). It is ordered that no later than 40 days from the Fourth Circuit's decision in US v. Simmons, No. 08-4475, the US Atty shall file an Answer to petr's Mot/Vacate. Signed by District Judge Richard Voorhees on 8/9/2011. (Pro se litigant served by US Mail.)(cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:11CV81-3-V
(5:05CR235-5)

GILBERT GARILLE CALDWELL,
Petitioner,
vs.
UNITED STATED OF AMERICA,
Respondent.

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ORDER

THIS MATTER comes before the Court upon the Petitioner’s Motion to Vacate, Set Aside,
or Correct Sentence. (Doc. No. 1).
On August 23, 2005, Petitioner was charged in one count of a four-count bill of indictment
with conspiracy to possess with intent to distribute cocaine and cocaine base in violation of 21
U.S.C. § 846. (Crim. Case 5:05cr235, Doc. No. 3: Indictment). On the same day, the Government
filed an information pursuant to 21 U.S.C. § 851, notifying Petitioner and the Court of Petitioner’s
state felony conviction that the Government intended to rely upon at sentencing. (Id. at Doc. No.
21). On December 20, 2005, Petitioner pled guilty pursuant to a written plea agreement to the
conspiracy count charged in the indictment. (Id. at Doc. No. 152). Petitioner was sentenced on June
18, 2007 to 240 months imprisonment, see U.S.S.G. § 5G1.1(b), followed by 10 years of supervised
release.1 (Id. at Doc. No. 403: Judgment).

1

The Court concluded that Petitioner was subject to the recidivist provision of §
841(b)(1)(A) which imposes a statutory minimum of 20 years imprisonment if a defendant has
been convicted previously of a felony drug offense.
1

Petitioner did not directly appeal either his conviction or sentence. On June 13, 2011,
Petitioner filed the instant motion to vacate contending that his sentence should be vacated in light
of the Supreme Court’s ruling in Carachuri-Rosendo,2 which he argues applies retroactively to his
case on collateral review making his motion to vacate timely under 28 U.S.C. § 2255(f)(3).
After careful review of the motion and case file, the undersigned finds that the United States
Attorney should file an Answer detailing and responding to Petitioner’s allegation. However, the
Court is aware that on May 11, 2011, the Fourth Circuit heard oral argument en banc in the Simmons
case. United States v. Simmons, No. 08-4475.3 The Court is also aware of the Fourth Circuit’s
decision to place the appeal in United States v. Powell, No. 11cv6152,4 in abeyance pending a
decision in Simmons. In light of these recent developments in the Fourth Circuit Court of Appeals,
the Court directs that the United States file an Answer in this case within forty (40) days of the

2

In Carachuri-Rosendo v. Holder, 560 U.S. ___, 130 S. Ct. 2577 (2010), the Supreme
Court considered whether the defendant, who had been convicted in state court of two
misdemeanor drug offenses, and who had not been charged as a recidivist with respect to the
second offense, qualified as having been convicted of an “aggravated felony” under 8 U.S.C. §
1101(a)(43) of the Immigration and Naturalization Act. The Court concluded that ‘[t]he mere
possibility that defendant’s conduct, coupled with facts outside of the record of conviction, could
have authorized a felony conviction under federal law is insufficient to satisfy the statutory
command that a noncitizen be ‘convicted of a[n] aggravated felony’ before he loses the
opportunity to seek cancellation of removal.” Id. at 2589. The Court, therefore, concluded that
the state convictions to which no recidivist penalty attached did not meet the definition of
“aggravated felony” under the immigration statute.
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In United States v. Simmons, a three judge panel of the Fourth Circuit concluded that
the Court’s prior precedent in United States v. Harp, 406 F.3d 242 (4th Cir. 2005) is unaffected by
the Supreme Court’s decision in Carachuro-Rosendo.
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In United States v. Powell, in the context of a motion to vacate under 28 U.S.C. § 2255,
this Court granted Petitioner a certificate of appealability as to whether Carachuri-Rosendo
announced a new rule of law that applies retroactively to cases on collateral review for purposes
of § 2255(f)(3).
2

Fourth Circuit’s decision in Simmons.
THEREFORE, IT IS HEREBY ORDERED that no later than forty (40) days from the
Fourth Circuit’s decision in United States v. Simmons, No. 08-4475, the United States Attorney shall
file an Answer to Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence, detailing and
responding to Petitioner’s allegation.

SO ORDERED.

Signed: August 9, 2011

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