Moss v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

DOCKET NO. 3:16-cv-00210-FDW (3:08-cr-97-FDW)

KELVIN GERARD MOSS, )

)

Petitioner, )

)

vs. )

) ORDER

UNITED STATES OF AMERICA, )

)

Respondent. )

)

)

)

THIS MATTER is before the Court on Kelvin Gerard Moss’s Motion to Vacate, Set Aside,

or Correct Sentence pursuant to 28 U.S.C. § 2255, in which he seeks relief pursuant to Johnson v.

United States, 135 S.Ct. 2551 (2015). (Doc. No. 1). The Court held this matter in abeyance

beginning September 19, 2016, pending the Supreme Court’s decision in Beckles v. United States,

and the stay was lifted on May 18, 2018. The government filed a Response to Petitioner’s Motion

(Doc. No. 10) on August 22, 2018, and Petitioner, represented by counsel, filed a Reply (Doc. No.

12) on September 10, 2018. Accordingly, the matter is ripe for the Court’s review.

I. Background

Petitioner was convicted by a jury of armed bank robbery, using and carrying a firearm

brandished during and in relation to a crime of violence, possession of a firearm by a convicted

felon, and escape from custody. (3:08-cr-97, Doc. No. 81, p.4).

The Presentence Investigation Report (“PSR”) scored the base offense level for Count One,

bank robbery, as 20 plus a total of three levels for specific offense characteristics, resulting in an

adjusted offense level subtotal of 23. (Id. at 6). The PSR also scored the base offense level for

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Count Three, possession of firearm by convicted felon, as 24, and Count Four, escape from

custody, as 13. (Id. at 7). However, Petitioner qualified for a Chapter Four career offender

enhancement with a base offense level of 37 because he had at least two prior felony convictions

for a crime of violence or controlled substance offense. (Id. at 8). Petitioner had 9 criminal history

points and a criminal history category of VI, and further, the criminal history category for career

offenders is VI. (Id. at 12). The resulting advisory guideline range was life imprisonment. (Id. at

16).

The Court adopted the PSR without change (3:08-cr-97, Doc. No. 93) and sentenced

Petitioner to a term of life imprisonment to run concurrently for Counts One and Three, life

imprisonment to run consecutively with Counts One and Three for Count Two, and sixty months

imprisonment to run concurrently with the other terms for Count Four. (3:08-cr-97, Doc. No. 92,

p.2). Petitioner appealed, and the Fourth Circuit affirmed by unpublished per curiam opinion on

September 7, 2011. See United States v. Moss, No. 10-5119 (4th Cir. Sept. 7, 2011); (3:08-cr-97,

Doc. No. 107).

Petitioner filed the instant successive § 2255 Motion to Vacate on May 3, 2016 (Doc. No.

1) with authorization of the Fourth Circuit (3:08-cr-97, Doc. No. 113-1). He argues that his prior

convictions are not crimes of violence in light of Johnson v. United States, 135 S.Ct. 2551 (2015),

and accordingly his life sentences are violations of due process. The Court granted Respondent’s

Motion to stay these proceedings pending the outcome of Beckles v. United States, No. 15-8455.

(Doc. No. 6). Following Beckles’ issuance, 137 S.Ct. 886, 894 (2017), the Government filed a

Response, (Doc. No. 10), arguing that Petitioner’s sentencing claim is procedurally defaulted on a

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successive motion under § 2255, meritless, and alleges a harmless error. Petitioner has filed a

Response, (Doc. No. 12), in which he reiterates his Johnson claim.

II. Standard of Review

A federal prisoner claiming that his “sentence was imposed in violation of the Constitution

or the 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, may move the court which imposed the sentence to vacate, set aside or correct

the sentence.” 28 U.S.C. § 2255(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to

promptly examine motions to vacate, along with “any attached exhibits and the record of prior

proceedings” in order to determine whether the petitioner is entitled to any relief on the claims set

forth therein. After examining the record in this matter, the Court finds that the argument presented

by the Petitioner can be resolved based on the record and governing case law. See Raines v. United

States, 423 F.2d 526, 529 (4th Cir. 1970).

III. Discussion

Petitioner argues that three sentencing provisions and statutes contain an unconstitutionally

vague residual clause and this Court erroneously applied those statutes in determining his sentence

at the time it was imposed. Specifically, Moss challenges as unconstitutionally vague: the career-

offender guideline, U.S.S.G. § 4B1.1(a); the “three strikes” statute, 18 U.S.C. § 3559(c)(1); and

the Armed Career Criminal Act, 18 U.S.C. § 924(e).

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In Johnson, the United States Supreme Court announced that the Armed Career Criminal

Act’s (“ACCA”) residual clause1 is void for vagueness, which is a retroactively applicable right

following Welch v. United States, 136 S.Ct. 1257, 1265 (2016). Pursuant to Johnson, a defendant

who was sentenced under the ACCA to a mandatory minimum term in prison based on a prior

conviction that satisfies only the residual clause of the ACCA's “violent felony” definition is

entitled to relief from his sentence. See Johnson, 135 S. Ct. at 2558. The Johnson Court left intact

the remainder of the ACCA's “violent felony” definition, including the four enumerated offenses

and the “force clause.” Id. at 2563.

Moss contends that the holding in Johnson applies equally to the career-offender

provisions of the Sentencing Guidelines and the “three strikes” statute, 18 U.S.C. § 3559(c)(1).

However, Johnson does not apply to the advisory sentencing guidelines because “the

Guidelines are not amenable to a vagueness challenge.” Beckles v. United States, 137 S.Ct. 886,

894 (2017). Additionally, Johnson did not announce a right not to be sentenced under other

“residual clauses” regardless of their similarity to that of the ACCA. See United States v. Brown,

868 F.3d 297, 302 (4th Cir. 2017) (explaining “Johnson dealt only with the residual clause of the

ACCA”). The Supreme Court has never announced a prohibition against applying the “three

strikes” statute’s residual clause to increase a defendant’s sentence and did not do so in Johnson.

The Court therefore dismisses Moss’s claims regarding the career-offender guideline, U.S.S.G. §

4B1.1(a), or the “three strikes” statute, 18 U.S.C. § 3559(c)(1).

1 ACCA defines a “violent felony” as any felony that: “(i) has as an element the use, attempted use, or

threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18

U.S.C.A. § 924(e)(2)(B) (emphasis added). The italicized portion of the definition is referred to as the residual clause.

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Turning to Moss’s ACCA-related claim, for Johnson to apply here this Court must have

relied exclusively on the ACCA’s residual clause to find a “violent felony” necessary to apply the

statute’s sentencing enhancement. See Kane v. United States, No. 1:16-cv-00146, 2016 WL

7404720, at *3 (W.D.N.C. Dec. 21, 2016), aff’d per curiam, 706 F.App’x 141 (4th Cir. 2017). The

PSR adopted by the Court in sentencing Moss contains no mention of the ACCA’s residual clause.

Rather, the PSR details Moss’s prior convictions including breaking and entering, assault with a

deadly weapon, second degree murder, and conspiracy to possess with intent to distribute cocaine

and cocaine base. ((3:08-cr-97, Doc. No. 81, p.8). The Court therefore had ample reason to apply

the ACCA’s sentencing enhancements in the absence of the unconstitutional residual clause.

Moreover, these convictions constitute “three previous convictions . . . for a violent felony or a

serious drug offense,” 18 U.S.C. § 924(e)(1), such that any reliance by the Court on the ACCA’s

residual clause would constitute harmless error because the ACCA applies to him regardless.

IV. Conclusion

For the foregoing reasons, the Court DENIES Petitioner’s § 2255 Motion to Vacate, Set

Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1).

IT IS, THEREFORE, ORDERED that:

1. Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §

2255, (Doc. No. 1), is DENIED.

2. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of

appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338

(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable

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jurists would find the district court’s assessment of the constitutional claims

debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is

denied on procedural grounds, a petitioner must establish both that the dispositive

procedural ruling is debatable and that the petition states a debatable claim of the

denial of a constitutional right).

IT IS SO ORDERED.

Signed: May 30, 2020

Frank D. Whitney □□

Chief United States District Judge ~“»*"