Filed: Nov. 13, 2014
Latest Update: Nov. 13, 2014
Summary: ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE, Magistrate Judge. Petitioner Alan Christopher Little, a former federal prisoner, brings a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255 [1:06CR22-1, Doc. #92]. On April 6, 2006, Petitioner was convicted of one count of conspiracy to distribute cocaine base in violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(A). He received a sentence of 370 months of imprisonment to be followed
Summary: ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE, Magistrate Judge. Petitioner Alan Christopher Little, a former federal prisoner, brings a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255 [1:06CR22-1, Doc. #92]. On April 6, 2006, Petitioner was convicted of one count of conspiracy to distribute cocaine base in violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(A). He received a sentence of 370 months of imprisonment to be followed ..
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ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
Petitioner Alan Christopher Little, a former federal prisoner, brings a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [1:06CR22-1, Doc. #92]. On April 6, 2006, Petitioner was convicted of one count of conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A). He received a sentence of 370 months of imprisonment to be followed by ten years of supervised release. Petitioner's Motion argues that, in light of the decision of the Court of Appeals for the Fourth Circuit in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), a statutory enhancement of his sentence is invalid because the conviction listed in an Information of Prior Conviction as supporting that enhancement under 21 U.S.C. § 851 was not punishable by more than one year of imprisonment. He also claims that, under Simmons and United States v. Davis, 720 F.3d 215 (4th Cir. 2013), a career offender sentencing enhancement applied under USSG § 4B1.1 is no longer valid.
With respect to Petitioner's career offender claim, that claim is meritless. Petitioner's advisory sentencing level under the United States Sentencing Guidelines was based not on his status as a career offender, but on the amount of drugs involved in the offense. Together with the amount of drugs, plus applicable enhancements for firearm possession and leadership in a criminal activity involving five or more participants, Petitioner's adjusted offense level was 41 when reduced for acceptance of responsibility. (PSR, ¶¶ 45, 46, 48, 50, 52, 53.) Application of the career offender enhancement did not change this level, but did increase Petitioner's criminal history category from V to VI. (Id., ¶¶ 51, 78.) The increase in the criminal history level did not prejudice Petitioner because the advisory sentencing ranges for level 41, with criminal histories of both V and VI are 360 months to life imprisonment. Therefore, the application of the career offender enhancement did not affect his sentence.1 Petitioner's claim challenging his career offender status should be denied.
Petitioner's Simmons claim is a different matter. In its Response [Doc. #100], the Government concedes that the Information is no longer valid in light of Simmons and that Petitioner was sentenced to a ten-year statutory mandatory minimum supervised release term that was in excess of the otherwise applicable maximum term of five years. The Government affirmatively waives any statute of limitations defense that might otherwise apply to Petitioner's challenge to his term of supervised release.2 The Government then agrees that the Court should enter a corrected judgment reducing Petitioner's term of supervised release to five years, which is the minimum term he could have received absent the now invalid Information.3
The Court has reviewed Petitioner's prior conviction for sale and delivery of cocaine that was set out in the Information, and the Court notes that the conviction is a Class H felony for which Petitioner received a sentence of 6 to 8 months imprisonment (PSR, ¶¶ 58, 62), indicating that his prior record level was necessarily III or less and that the maximum sentence he faced for that offense under North Carolina law, as analyzed in Simmons, was less than 12 months. See N.C. Gen. Stat. § 15A-1340.17(c) and (d) (for offenses committed after Dec. 1, 1994). Therefore, having reached this conclusion this Court will recommend that Petitioner's Motion be granted to the extent that it challenges his term of supervised release under Simmons, that it be denied otherwise, and that a corrected judgment be entered reducing Petitioner's term of supervised release to five years.4
Also pending before the Court is a Motion to Withdraw [Doc. #110] filed by Petitioner's attorney, who the Court appointed to represent him regarding his Simmons claim. Petitioner's attorney also reports that he seeks an appointment of new counsel. The Motion to Withdraw will be granted to the extent that Petitioner's attorney seeks to withdraw from the case. However, given that Petitioner is already prevailing on his Simmons claim, there is no need for further representation regarding that claim.
IT IS THEREFORE ORDERED that the Motion to Withdraw [Doc. #110] is GRANTED to the extent that Petitioner's attorney seeks to withdraw, but DENIED to the extent that Petitioner seeks another appointment of counsel.
IT IS RECOMMENDED that Petitioner's Motion to Vacate, Set Aside or Correct Sentence [Doc. #92] be GRANTED to the extent that it challenges his term of supervised release, that it be DENIED otherwise, and that a corrected judgment be entered reducing Petitioner's term of supervised release to five years.
