November 12, 2013
UNITED STATES OF AMERICA
MARLON CLIFTON WHITELEY, Petitioner.
JACKSON L. KISER, District Judge.
Marlon Clifton Whiteley, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. I previously sentenced Petitioner to, inter alia, 101 months' incarceration, consisting of 41 months' incarceration for possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and 60 months' incarceration for possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Petitioner presently challenges his sentence for the § 841(a)(1) conviction, arguing that none of his state-court convictions should have been used as an enhancement in light of United States v. Simmons , 649 F.3d 237 (4th Cir. 2011).
I did not apply an enhancement found in Chapter Four of the United States Sentencing Guidelines to Petitioner's sentence, as he alleges. Instead, I relied on Petitioner's state-court convictions merely to calculate a criminal history category for the United States Sentencing Guidelines. Furthermore, Simmons does not apply to Petitioner's case because he was not convicted of a crime for which a predicate felony conviction was necessary. Accordingly, Petitioner's arguments do not have a factual basis, and I dismiss the § 2255 motion because it plainly appears that Petitioner is not entitled to relief. Based upon my finding that Petitioner has not made the requisite substantial showing of a denial of a constitutional right as required by 28 U.S.C. § 2253(c), a certificate of appealability is denied.