United States District Court, D. Maryland
L. Hollander, United States District Judge.
Cox, who is self-represented, filed a motion under 28 U.S.C.
§ 2255, seeking to vacate, set aside, or correct his
sentence of 144 months, imposed on January 13, 2014. ECF 57,
(the “Petition”). The Petition was docketed on
July 5, 2016. The government initially filed a motion to
dismiss the Petition as untimely. ECF 60
(“Motion”). Thereafter, it filed a response in
opposition to the merits. ECF 62 (“Opposition”).
Petitioner has not replied, and the time to do so has
28 U.S.C. § 2255(b), a hearing is required
“[u]nless the motion and the files and records of the
case conclusively show the prisoner is entitled to no relief
. . . .” This is such a case. No hearing is necessary.
For the reasons that follow, I shall deny the Petition.
Procedural and Factual Background
indicted on February 12, 2013 (ECF 1) on charges of
distribution and possession with intent to distribute cocaine
base or “crack, ” in violation of 21 U.S.C.
particular, in Count One he was charged with distribution of
28 grams or more of cocaine base, on or about March 26, 2012.
In Count Two, he was charged with possession with intent to
distribute 28 grams or more of cocaine base, on or about
April 3, 2012.
October 15, 2013, Cox entered a plea of guilty to Count One
and Count Two (ECF 49), pursuant to a written Plea Agreement.
See ECF 46. Each count carried a mandatory minimum
penalty of five years' imprisonment and a maximum term of
forty years' incarceration. Id. ¶ 3.
Cox pleaded guilty pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure. See ECF 46,
¶¶ 3, 9. Under Paragraph 9 of the Plea Agreement,
the parties stipulated to a total sentence of 144 months'
imprisonment as the appropriate disposition of the case.
Paragraph 5 of the Plea Agreement, the parties stipulated to
a total base offense level of 28, based on the quantity of
narcotics. See U.S.S.G. §
2D1.1(c)(6). The government also agreed to a two-level
reduction based on the defendant's acceptance of
responsibility. ECF 46, ¶ 6. But, the Plea Agreement
stated that the government would not move for the additional
one-point deduction under § 3E1.1(b). Id. And,
there was no agreement as to Cox's criminal history or
his criminal history category. Id. ¶ 7. Under
paragraph 17 of the Plea Agreement, the Court was not bound
by the parties' factual or guidelines stipulations.
Probation Department prepared a Presentence Report
(“PSR”) for sentencing purposes. ECF 50. The PSR
reflects that defendant had previously been convicted of
three distinct felony narcotic offenses. Therefore, according
to the PSR, Cox qualified as a career offender under U.S.S.G.
§ 4B1.1. ECF 50, ¶ 23. As a result, his base
offense level was enhanced from a 28 to a 34. After two
deductions for acceptance of responsibility, the PSR
indicated that defendant had a final offense level of 32. ECF
50, ¶ 25. The Presentence Report also reflected that
defendant had 17 criminal history points, which established a
criminal history category of VI. Id. ¶ 60.
Alternatively, because the defendant was a career offender,
the PSR reflected a criminal history category of VI.
Id. ¶ 61.
the guidelines, based on a total offense level of 32 and a
criminal history category of VI, Cox had an advisory
sentencing guideline range of 210 to 262 months'
imprisonment. If the offense level were 26, as anticipated in
the Plea Agreement, Cox's guideline range would have been
120 to 150 months' imprisonment.
was held on January 13, 2014. ECF 52. The Court determined
that Cox qualified as a career offender. See ECF 54
at 1; ECF 56 (Sentencing Transcript), at 5-6. Defense counsel
did not dispute that finding. Id. at 6.
Nevertheless, pursuant to the terms of the C plea, the Court
imposed a concurrent sentence of 144 months as to Counts One
and Two. See ECF 53; ECF 56. No appeal was noted
from the Court's disposition of the case.
5, 2016, the Clerk docketed Mr. Cox's § 2255
Petition. In the Petition, Mr. Cox asserts, ECF 57 at 4:
“My sentence designation as a career offender violates
the Due Process Clause of the Fifth Amendment for the reasons
asserted in Johnson v. United States and the Fourth
Circuit's recent decision in Hubbard v. United
States.” He also states, id. at 11: “My
Motion is timely b/c it was placed in the institutional
mailing system before June 26, 2016, one year prior to the
decision in Johnson v. United States.”
the Petition also includes a Declaration executed by Mr. Cox
on June 25, 2016. There, he averred, id.: “I
declare . . . under penalty of perjury that the foregoing is
true and correct and that this Motion under 28 U.S.C. §