McCoy v. Ormond
Filing
19
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr. on 5/26/2020. (Copy mailed to Petitioner) (smej, )
Case 3:18-cv-00295-JAG-RCY Document 19 Filed 05/26/20 Page 1 of 6 PageID# 156
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ANTWAINE LAMAR MCCOY,
Petitioner,
v.
Civil Action No. 3:18CV295
J. RAY ORMOND,
Respondent.
MEMORANDUM OPINION
Petitioner, a federal inmate proceeding pro se, submitted this 28 U.S.C. § 2241 Petition
challenging his sentence for his firearm conviction.
Petitioner
1
because United States v. Simmons, 635 F.3d 140 (4th Cir. 2011) and United States v. Newbold,
qualifying toward an increased statutory sentence
2
The
Government filed a Motion to Dismiss. (ECF No. 17.) For the reasons set forth below, the
Government s Motion to Dismiss will be GRANTED, and
firearm sentence under the concurrent sentence doctrine.
1
The ACCA provides that
[i]n the case of a person who violates section 922(g) of this title and has
three previous convictions by any court referred to in section 922(g)(1) of
this title for a violent felony or a serious drug offense, or both, committed
on occasions different from one another, such person shall be fined under
this title and imprisoned not less than fifteen years . . . .
18 U.S.C. § 924(e)(1).
2
The Court employs the pagination assigned by the CM/ECF docketing system. In reciting
the procedural history, the Court omits any second level citations to
criminal case.
Case 3:18-cv-00295-JAG-RCY Document 19 Filed 05/26/20 Page 2 of 6 PageID# 157
I. Pertinent Procedural History
Petitioner was charged in the Western District of North Carolina
with, inter alia, possession with intent to distribute cocaine (Count One) and with being a felon
in possession of a firearm (Count Three). McCoy v. United States, No. 3:03 CR 00064 RLV,
2012 WL 2872105, at *1 (W.D.N.C. July 12, 2012),
, 589 F. App x 169 (4th Cir. 2015). On
or about August 13, 2003, the Government filed an Information pursuant to 21 U.S.C. § 851,
notifying Petitioner of his previous convictions for possession with intent to sell or deliver cocaine,
both in Mecklenburg County Superior Court in 1992 and 1993
Id.
Thereafter,
Petitioner entered into a Plea Agreement with the government wherein he agreed
to plead guilty to Counts One and Three in return for the Government s agreement
to dismiss the remaining counts. Petitioner stipulated that the amount of cocaine
be] at least 500 grams but less than 2 kilos. Petitioner further stipulated that his
criminal history qualified him as Armed Career Criminal, and as such, he would be
sentenced to a minimum term of 15 years for [his] conviction of Count Three. The
Plea Agreement also provided that Petitioner agreed to waive his right to bring a
Section 2255 action challenging his conviction or sentence except on the grounds
of ineffective assistance of counsel and/or prosecutorial misconduct.
On June 16, 2004, Petitioner appeared with counsel before the magistrate
judge for his Rule 11 hearing. Following a lengthy and thorough colloquy, the
magistrate judge accepted Petitioner s plea of guilty to Counts One and Three. On
February 14, 2005, Petitioner appeared with counsel before the Court for his
sentencing hearing and was sentenced to 262 months imprisonment for conviction
of Count One and Count Three with both sentences to run concurrently.
Id. Additionally, the Sentencing Court sentenced Petitioner to eight years of supervised release on
Count One to run concurrent with the five-year term of supervised release imposed on Count
Three. United States v. McCoy, 3:03CR64, ECF No. 26, at 3 (W.D.N.C. Mar. 15, 2005.) In the
years that followed, Petitioner filed a number of unsuccessful challenges to his sentence. (See
ECF No. 17, at 5 7.) Included in these challenges
States v. Simmons, [635 F.3d 140 (4th Cir. 2011)] McCoy
2
of United
Case 3:18-cv-00295-JAG-RCY Document 19 Filed 05/26/20 Page 3 of 6 PageID# 158
...
§ 924(e) and may not serve
as predicates for an enhanced
§ 2255 (ECF No.
14), at 25, McCoy v. United States, 3:09 cv 461 RLV (W.D.N.C. filed Sept. 9, 2011).
In 2018, Petitioner filed the present § 2241 Petition wherein he once again argues that in
the wake of Simmons his North Carolina drug convictions do not qualify as serious drug
convictions for purposes of the ACCA, as it relates to his sentence on Count Three. 3
II. Concurrent Sentence Doctrine
The concurrent sentence doctrine rests on the same rationale underlying harmless-error
review
namely, the recognition that to help promote the overall functioning of our justice
system, courts should conserve judicial resources by . . . cleans[ing] the judicial process of
prejudicial error without becoming mired in harmless error.
United States v. Charles, 932 F.3d
153, 158 (4th Cir. 2019) (alteration in original) (quoting United States v. Hasting, 461 U.S. 499,
501 (1983)). The United States Court of Appeals for the Fourth Circuit recently explained:
concurrent sentence unreviewed when another is valid and carries the same or
greater duration of punishment so long as there is no substantial possibility that the
unreviewed sentence will adversely affect the defendant or, stated otherwise, so
long as it can be foreseen with reasonable certainty that the defendant will suffer
no adverse collateral consequences by leaving it unreviewed. . . . [W]e find that
this standard is satisfied when the only potential harm to the defendant is grounded
on unrealistic speculation.
Id. at 155.
In Charles
as both a career offender and an
armed career criminal.
3
In the present petition, Petitioner does not specifically challenge his sentence for Count
One.
3
Case 3:18-cv-00295-JAG-RCY Document 19 Filed 05/26/20 Page 4 of 6 PageID# 159
supervised release on the drugsupervised release on the firearm offense, with both sentences to run concurrently.
Id. at 156.
Thereafter, the defendant filed a 28 U.S.C. § 2255 motion challenging his sentence on both his
drug-trafficking and firearm convictions. Id. The district court denied the 28 U.S.C. § 2255,
noti
challenge to his career offender status had been foreclosed by Beckles [v. United
States, 137 S. Ct. 886 (2017)] and therefore that his 360-month sentence on the
drug-trafficking offense was valid. And second, invoking the concurrent sentence
doctrine, the court declined to decide whether
360-month term of
imprisonment for his firearm conviction was invalid under [Johnson v. United
States, 135 S. Ct. 2551 (2015)] because [the defendant] had been validly sentenced
to the same term for his drug-trafficking offense and the two terms of imprisonment
were imposed concurrently.
Id. at 157.
The defendant insisted the concurrent sentence doctrine should not apply because there
was a possibility that leaving the firearm sentence unreviewed could adversely affect him if he
violated the terms of his supervised release. Id. at 161.
Specifically, he describe[d] a situation
where, after serving a 30-year term of imprisonment and being released from prison when he [was]
nearly 60 years old, he would commit a violation of his supervised release within the first three
years of his release
the period during which he would be serving two concurrent terms of
supervised release on the two sentences
Id. The Fourth Circuit
hypothetical scenario was too speculative to preclude the application of the concurrent sentence
doctrine and emphasized his posited adverse effect would be entirely within his ability to avoid.
4
4
In order for the defendant to be adversely affected under his scenario it required the
alignment of the following events:
(1) that [the defendant] commit a violation of his supervised release; (2) that his
violation occur in the 3-year window after his release from prison when he would
be serving both release terms; (3) that his violation be extraordinarily serious; (4)
4
Case 3:18-cv-00295-JAG-RCY Document 19 Filed 05/26/20 Page 5 of 6 PageID# 160
Id. The Fourth Circuit agreed with the Eighth Circuit
the adverse consequences are entirely
within [his] control to avoid. Literal application of such speculative consequences, resting upon a
concurrent sente
Id. (alterations in original) (quoting Eason v. United States, 912 F.3d
1122, 1124 (8th Cir. 2019)).
Charles. He received
identical concurrent terms of imprisonment on his drug and firearm convictions. His term of
supervised release on his valid drug sentence is longer than the term of supervised release on
firearm sentence that he wishes to challenge. Petitioner fails to advance any possibility that leaving
his firearm sentence unreviewed could adversely affect him except for the chance that if he violated
the terms of his supervised release the unreviewed firearm sentence would allow the district court
to impose a longer term of imprisonment for violating his term of supervised release. (ECF No.
18, at 8.)
it can be foreseen with reasonable certainty that the
defendant will suffer no adverse collateral consequences by leaving [his firearm sentence]
unreviewed.
speculation
Id.
he only potential harm to [Petitioner] is grounded on unrealistic
Petitioner
id.
posited adverse effect
Id. at 161. Accordingly, the Court finds the
co
imprisonment for the most serious violation to be insufficient to punish the
violation; and (5) that the court find it necessary to issue a variance sentence that
would be at least 22 months longer than the highest recommended sentence to reach
Charles, 932 F.3d at 161.
5
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III.
Conclusion
(ECF No. 17) will be
GRANTED.
§ 2241 Petition (ECF No. 1) will be DENIED. The action will be
DISMISSED.
An appropriate Order shall accompany this Memorandum Opinion.
Date: 26 May 2020
Richmond, Virginia
6
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