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United States v. Whiteley

United States District Court, Fourth Circuit

November 12, 2013

UNITED STATES OF AMERICA
v.
MARLON CLIFTON WHITELEY, Petitioner.

MEMORANDUM OPINION

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.[1] 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.


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