LOUISE W. FLANAGAN, District Judge.
This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 161), which challenges petitioner's Armed Career Criminal Act (ACCA) sentencing enhancement in light of
On April 3, 2008, petitioner was convicted following a jury trial of four counts: (1) conspiracy to distribute and possess with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 846 ("count one"); (2) possession with the intent to distribute a quantity of marijuana and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 ("count two"); (3) use, carry, and possess a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("count three"); (4) possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924 ("count four").
Prior to sentencing, the United States Probation Office prepared and published a Presentence Investigation Report ("PSR"), which describes in detail petitioner's background, including his criminal history. Based on petitioner's criminal history, the PSR determined that petitioner was an "armed career criminal" and that his statutory minimum sentence on count four was 15 years, under 18 U.S.C. § 924(e)(1). (DE 71, ¶¶ 48, 54). In support of its designation of petitioner as an "armed career criminal" the PSR identified two North Carolina felony convictions for "Sale and Delivery of Cocaine," one North Carolina felony conviction for "Discharge a Weapon into Occupied Property," one North Carolina felony conviction for "Assault with a Deadly Weapon With Intent to Kill" (hereinafter "AWDWIK"), one North Carolina felony conviction for "Assault with a Deadly Weapon Inflicting Serious Injury," and one North Carolina felony conviction for "Breaking and Entering." (
The court sentenced petitioner to a total term of 360 months imprisonment, adopting the PSR without change. (
Petitioner filed a first § 2255 motion on May 16, 2012, as supplemented, including claims for ineffective assistance of counsel, which the court denied on December 15, 2014. On June 7, 2016, the Fourth Circuit entered an order authorizing petitioner to file a second or successive § 2255 motion on the basis of
Petitioner filed the instant motion to vacate on June 27, 2016, arguing that he can no longer be classified as an Armed Career Criminal because he does not have qualifying predicate convictions following
In response to the show cause order, petitioner argues that one of the three identified drug offenses (PSR ¶10) does not now qualify as an ACCA predicate because it does not have a maximum sentence of ten years, and that the other two identified drug offenses (PSR ¶11) must be counted together because there is no evidence they occurred on different occasions. In addition, petitioner reiterates his position that the assault convictions and discharge of firearm conviction (PSR ¶17) are not valid predicate convictions. In its response, the government now takes the position that petitioner remains an armed career criminal, because the two drug offenses in PSR ¶10 qualify separately as valid predicates, coupled with the AWDWIK conviction and breaking and entering conviction.
A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." § 2255(b).
Petitioner has one qualifying prior conviction for breaking and entering. It is well-established in this circuit that the North Carolina offense of "breaking and entering" qualifies as an enumerated violent felony under the ACCA.
Petitioner has at least one qualifying prior conviction for a serious drug offense. The ACCA provides a fifteen year minimum sentence on a § 922(g) violation where a defendant has three previous convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e)(1). A serious drug offense is "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). Petitioner concedes that the drug convictions identified in paragraph 11 of the PSR constitute together one predicate conviction for ACCA purposes. For purposes of the instant order, where the court determines below that petitioner's AWDWIK conviction qualifies as an ACCA predicate, the court need not determine whether additional drug offenses noted in the PSR constitute separate ACCA predicates.
Before
Where the residual clause of the ACCA now is unavailable after
To determine if petitioner's AWDWIK conviction constitutes a "violent felony" under the "use of force" provision, the court must apply "the familiar categorical approach," under which the court must "look only to the fact of conviction and the statutory definition of the prior offense, focusing on the elements of the prior offense rather than the conduct underlying the conviction."
The statute criminalizing AWDWIK states that "Any person who assaults another person with a deadly weapon with intent to kill shall be punished as a Class E felon." N.C. Gen. Stat. § 14-32(a). The elements of assault with a deadly weapon with intent to kill are: (1) an assault, (2) with the use of a deadly weapon, (3) with an intent to kill.
This court previously has held that the offense of assault with a deadly weapon inflicting serious injury ("AWDWISI"), a separate offense under N.C. Gen. Stat. § 14-32(b), is not a violent felony under the ACCA, because such offense lacks a specific intent element, and requires only "culpable or criminal negligence" for a conviction.
In addition, the "use of a deadly weapon" element of the AWDWIK offense, coupled with the "specific intent to kill,"
In sum, petitioner's AWDWIK conviction properly constitutes a predicate offense under the ACCA. Therefore, coupled with his breaking and entering conviction and serious drug conviction, petitioner properly was subjected to an increased statutory minimum sentence under the ACCA, and his § 2255 motion is without merit.
A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that reasonable jurists could debate whether the issues presented should have been decided differently or that they are adequate to deserve encouragement to proceed further.
Based on the foregoing, the court DENIES petitioner's motion to vacate (DE 161). The court GRANTS a certificate of appealability. The clerk is DIRECTED to close this case.
SO ORDERED.