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Draine v. United States

United States District Court, D. Maryland

August 13, 2018




         Pending before the Court are Petitioner's (1) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Motion to Vacate”) (ECF No. 50), (2) Motion for Leave of Court Granting Request Pursuant to Rule 6 for Additional Discovery (“Motion for Discovery”) (ECF No. 53), and (3) Motion Requesting Leave to Amend his Motion to Vacate Pursuant to Federal Rule of Civil Procedure 15(a) (“Motion to Amend”) (ECF No. 54). For the reasons discussed below, the Court will deny each motion.

         I. Background

         On February 7, 2011, Petitioner pleaded guilty to (1) possession with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1), and (2) possession of a firearm and ammunition after a felony conviction, in violation of 18 U.S.C. § 922(g). ECF No. 23. In preparation for sentencing, the United States Probation Office (“Probation”) determined Petitioner to be an armed career criminal, pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on a prior conviction for a violent felony, armed robbery, and three prior convictions for serious drug offenses. Presentence Report (“PSR”) ¶¶ 24, 42. This finding resulted in a higher offense level under United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 4B1.4(b)(3)(A). Id. Petitioner's total offense level was determined to be 31 and his criminal history category to be VI, resulting in a Guidelines range of 188 to 235 months imprisonment. Id. ¶ 55. On July 28, 2011, the Court sentenced Petitioner to 180 months imprisonment, the mandatory minimum under the ACCA, followed by five years of supervised release. ECF No. 47. Petitioner did not appeal his sentence.

         On June 17, 2016, Petitioner filed his Motion to Vacate. ECF No. 50. On September 7, 2016, the Government filed a Response in Opposition to Petitioner's Motion to Vacate, ECF No. 51, to which Petitioner filed a Reply on September 26, 2016, ECF No. 52. On October 28, 2016, Petitioner filed his Motion for Discovery, ECF No. 53, and his Motion to Amend, ECF No. 54. The Court will first dispose of Petitioner's Motion to Vacate and then the remaining motions.

         II. Motion to Vacate

         To prevail on a § 2255 motion, a petitioner must prove by a preponderance of the evidence that “[his] 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 . . . .” 28 U.S.C. § 2255 (2012); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). A claim which does not challenge the constitutionality of a sentence or the court's jurisdiction is cognizable in a § 2255 motion only if the alleged violation constitutes a “miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Collateral attack is not a substitute for direct appeal, therefore the failure to raise certain issues on direct appeal may render them procedurally defaulted on habeas review. United States v. Frady, 456 U.S. 152, 165 (1982). If the § 2255 motion, along with the files and records of the case, “conclusively show that [the petitioner] is entitled to no relief, ” a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255; Miller, 261 F.2d at 547. Pro se petitions are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

         In his Motion to Vacate, Petitioner focuses his challenge on the ACCA sentence enhancement. Petitioner argues that his prior armed robbery conviction no longer constitutes a qualifying violent felony after United States v. Johnson, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). ECF No. 50 at 4. Accordingly, Petitioner asks the Court to resentence him without the ACCA enhancement. Id.

         Notwithstanding Petitioner's argument, the Court need not weigh in on the question of whether Petitioner's prior conviction for armed robbery constitutes a qualifying ACCA predicate after Johnson because, as the Government points out in its Response, see ECF No. 51 at 3, Petitioner also had three qualifying prior drug offenses that are sufficient to uphold the ACCA enhancement.

         Pursuant to 18 U.S.C. § 924(e)(1), an armed career criminal is a person convicted under 18 U.S.C. § 922(g) “and has three previous convictions . . . for a violent felony or a serious drug offense, or both . . . .” The definition of a qualifying “serious drug offense” includes “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.” § 924(e)(2)(A)(ii).

         In determining whether a prior state conviction for a drug offense meets the above statutory definition, “[t]he controlling inquiry . . . is not what sentence [the defendant] actually received for the individual [offense][, but] [i]nstead . . . the maximum penalty that [the defendant] faced given his particular offense and his particular criminal history.” United States v. Newbold, 791 F.3d 455, 462 (4th Cir. 2015). In a case where there are no aggravating factors, the Court considers “the presumptive term to be the maximum applicable punishment.” Id. This is true even where “the defendant actually received a sentence below the presumptive term, either due to the existence of mitigating factors, or pursuant to a statutorily binding plea agreement.” Id. at 462-63 (internal citations omitted).

         All three of Petitioner's prior drug convictions constitute predicate offenses as can be determined through public records at the time of his convictions. According to Petitioner's PSR, Petitioner's three qualifying convictions were (1) a 1991 Maryland conviction for possession with intent to distribute cocaine (No. CT911763A), (2) a 1992 federal conviction for unlawful possession with intent to distribute five grams or more of cocaine base (No. CR-92-0059-01), and (3) a 2000 District of Columbia conviction for possession with intent to distribute heroin (No. 2000FEL7631). PSR ¶¶ 24, 33, 36, 41.

         Maryland possession with intent to distribute cocaine conviction.

         Under Maryland Annotated Code, Criminal Law § 5-602(2), [1] it is unlawful to “possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance.” Sections 5-403(b)(3)(iv)[2] and 5-101(s)(1)(ii)[3] together provide that cocaine is a narcotic, Schedule II controlled dangerous substance. Section 5-608(a)[4] states that “a person who violates a provision of §§ 5-602 through 5-606 of this subtitle with respect to a Schedule I or Schedule II narcotic drug is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years or a fine not exceeding $15, 000 or both.” Although it appears that Petitioner received a suspended sentence of only eight years imprisonment, the presumptive term and thus the maximum term of imprisonment to which he was subject for his conviction was 20 years. Accordingly, his Maryland ...

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