United States District Court, E.D. Virginia, Richmond Division
JOHN A. GIBNEY, Jr., District Judge.
Antoine L. Robinson, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. ("§ 2255 Motion, " ECF No. 121.) Robinson argues that he is entitled to relief based on the following claims:
Claim One: "Petitioner is innocent of the habitual offender provisions of the [Armed Career Criminal Act] and related Career Offender provisions of the [United States Sentencing Guidelines (U.S.S.G.')]." (§ 2255 Mot. 5.)
Claim Two: Counsel rendered ineffective assistance by failing "to object to the use of an alternate count in a prior case that had been consolidated for judgment as a predicate for enhancement as a career offender." ( Id. at 6.)
Claim Three: "The [Bureau of Prisons] misinterpreted a factor used by this Court to enhance his sentence and subsequently prohibit the Petitioner from gaining the benefit of [the Residential Drug Abuse Program (RDAP')]." ( Id. at 7-8.)
The Government has responded. The matter is ripe for judgment.
I. PROCEDURAL HISTORY
On September 3, 2008, a grand jury indicted Robinson for one count of conspiracy to distribute and possess with intent to distribute heroin and cocaine base (Count One), distribution of heroin (Count Two), possession with intent to distribute heroin (Count Three), possession with intent to distribute cocaine base (Count Four), conspiracy to possess firearms in furtherance of a drug trafficking crime (Count Five), and possession of firearms in furtherance of a drug trafficking crime (Count Six). (Indictment 1-5, ECF No. 1.) On January 15, 2009, a jury found Robinson guilty of Counts One, Two, and Three, not guilty of Count Four, and reached no verdict on Counts Five and Six. (Jury Verdict 1-2, ECF No. 35.) The Court later dismissed Counts Five and Six on the Government's motion. (J. 1, ECF No. 62.)
The Presentence Report ("PSR") calculated Robinson's base offense level as 18, found a two-point enhancement applicable for possession of a firearm under U.S.S.G. § 2D1.1(b)(1), which resulted in an offense level of 20. (PSR Worksheet A, at 1.) Robinson had a criminal history category of V. (PSR Worksheet D, at 1.) Robinson was found to be a career offender based on prior felony convictions for possession with intent to distribute cocaine as an accommodation, eluding police, and obstruction of justice. ( See PSR VII 32, 45; U.S.S.G. §§ 4B1.1 and 4B1.2 (2008).) Robinson's offense level increased to 32 and his criminal history category increased to VI. (PSR Worksheet D, at 1.) Robinson's sentencing range was 210 to 262 months of incarceration. (Id.)
Counsel for Robinson objected to the application of the career offender guideline arguing that Robinson's prior convictions failed to qualify as crimes of violence, thus, Robinson lacked two prior qualifying felony convictions. (Def's Objs. 1-3, ECF No. 44; July 15, 2009 Tr. 4-7.) Counsel also objected to the assessment of a two-level firearm enhancement. (Def's Objs. 1-2.) Finally, counsel moved for a variant sentence of sixty months. (Def's Pos. Sentencing 5, ECF No. 59.) During sentencing, counsel specifically objected to the career offender finding "because one of the predicate felonies was for an obstruction of justice or felony eluding, " and the Government offered no evidence "to suggest that the underlying conduct was one that posed a risk of dangerous harm or imminent - or injury to an individual." (July 15, 2009 Tr. 4-5.) The Court overruled counsel's objection and found Robinson to be a career offender, but then granted the downward variance and sentenced Robinson to 120 months of imprisonment.
Robinson appealed. The United States Court of Appeals for the Fourth Circuit affirmed his conviction and sentence, and found, inter alia, no error in "applying a firearms enhancement to his sentence... [or] by sentencing him as a career offender." United States v. Robinson, 395 F.App'x 931, 933 (4th Cir. 2010).
II. SENTENCING CLAIMS
In Claim One, Robinson argues that he "is innocent of the habitual offender provisions of the [Armed Career Criminal Act] and related Career Offender provisions of the [U.S.S.G.]. (§ 2255 Mot. 5.) To the extent Robinson contends that he is innocent of the Armed Career Criminal Act, 18 U.S.C. § 924(e), Robinson was not convicted of any offense under 18 U.S.C. § 924(e), thus, any reference to that provision is inapplicable. Robinson also contends that his prior felony obstruction of justice conviction fails to qualify as a crime of violence under U.S.S.G. § 4B1.2. Robinson claims that "[a]lthough counsel was requested to raise this issue on appeal, he refused to do so." (Mem. Supp. § 2255 Mot. 12.) Accordingly, Robinson seemingly concedes that the claim is procedurally defaulted. ( See id. at 12-13.) Nevertheless, Robinson explains that when counsel refused to raise his claim on appeal, Robinson submitted a pro se appellate brief to the Fourth Circuit. ( See id. at 10, 14.) Robinson states that "[i]n his supplemental pro se filing, [he] raised the issues originally addressed to counsel. Among them, [he] claimed the district court erred by enhancing him for being a career offender" based on the "obstruction of justice charge." ( Id. at 9-10.) The Fourth Circuit explained that it had reviewed the claims in Robinson's pro se brief, including the claim "that the district court erred by sentencing him as a career offender" and "conclude they are without merit." United States v. Robinson, 395 F.App'x 931, 933 (4th Cir. 2010).
Accordingly, as Robinson admits, the Fourth Circuit rejected Robinson's Claim One on direct review. See id.; (Mem. Supp. § 2255 Mot. 11.) Robinson fails to direct the Court to an intervening change in the law that would permit him to re-litigate these claims. See United States v. Linder, 552 F.3d 391, 396-97 (4th Cir. 2009); see also Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976). Thus, the Fourth Circuit's ruling bars collateral review of Claim One. Linder, 552 F.3d at 396-97. Robinson "may not circumvent a proper ruling on [his direct ...