United States District Court, E.D. Virginia, Richmond Division
John A. Gibney, Jr. Judge.
Michael Alexander Jones, a federal inmate proceeding pro se, brings this motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion, " ECF No. 55). Jones contends that the Court committed error in his sentencing. Specifically, Jones demands relief because:
Claim One: "Petitioner Jones's sentence is improper, his period of incarceration exceeds that permitted by law and constitutes a miscarriage of justice." (§ 2255 Mot. 4.)
The Government has responded, asserting that Jones's claim lacks merit. (ECF No. 58.) Jones has filed an opposition to the Government's response (''Reply, " ECF No. 59). For the reasons set forth below, Jones's § 2255 Motion will be DENIED.
I. PROCEDURAL HISTORY
On October 31, 2011, a Criminal Complaint was Hied, charging Jones with possession of a firearm by a convicted felon. (Crim. Compl. 1, ECF No. I.) On November 15, 2011, a grand jury charged Jones with one count of possession of a firearm by a convicted felon (Count One), and possession of heroin (Count Two). (Indictment 1. ECF No. 9.) On February 7, 2012, ajury found Jones guilty of Count One, but was unable to reach a unanimous verdict as to Count Two. (ECF No. 23.) The Court granted Jones's motion for judgment of acquittal as to Count Two. (Feb. 7, 2012 Tr. 185-86.)
Prior to sentencing, the Probation Officer determined that Jones qualified as an armed career criminal pursuant the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), "as he ha[d] three prior convictions of serious drug offenses committed on different occasions.'" (Presentence Investigation Report ("PSR") ¶ 35, ECF No. 27.) Because of this finding, Jones was subject to a period of imprisonment of "not less than fifteen years." 28 U.S.C § 924(e)(1). With this finding, Jones's total offense level was 33, and his Criminal History Category was VI. (PSR Wksht. D.) Jones's Sentencing Guidelines range called for 235 to 293 months of imprisonment. (Id.)
Jones did not contest the Probation Officer's determination that Jones was an armed career criminal. (ECF No. 33, at 1 n.2.) Jones, through counsel, objected to his placement in Criminal History Category VI, arguing that the correct Criminal History Category was V. (Id. at 1 nn. 2-3.) Counsel also raised an objection to the accuracy of the Guidelines calculation. (Id. at 1.) Counsel for Jones further moved for a variant sentence "not greater than the 180-month statutory minimum." (Id. at 2.)
The Court held Jones's sentencing hearing on June 4, 2012. The Court found that Jones's base offense level was 24, and chose to not impose a four-point enhancement for possession of heroin because Jones had been acquitted on Count Two. (June 4, 2012 Tr. 12.) Nevertheless, Jones's total offense level remained 33 because of his status as an armed career criminal. (June 4, 2012 Tr. 12; see also PSR Wksht. D.) The Court also reduced Jones's criminal history points from 15 to 12 after finding by a preponderance of evidence that "it [was] more likely than not that [Jones] finished his first sentence before July 10, 1996." (June 4, 2012 Tr. 12.) After these modifications, the Guidelines called for 210 to 262 months of imprisonment. (June 4, 2012 Tr. 12.) The Court granted Jones's motion for a variance in part, and sentenced Jones to 204 months of imprisonment. (J. 2, ECF No. 37; see also June 4, 2012 Tr. 34-36.) The United States Court of Appeals for the Fourth Circuit affirmed this Court's judgment. United States v. Jones, 500 F.App'x 216, 218 (4th Cir. 2012).
Jones argues that his sentence is "improper, his period of incarceration exceeds that permitted by law and constitutes a miscarriage of justice." (§ 2255 Mot. 4.) Jones asserts that the Court erred in finding that he was an armed career criminal "without first providing [Jones] with notice of the prior predicate convictions that it relied on." (Id.) He also contends that due process required that the Government provide notice of its intent to seek an enhanced sentence under the ACCA, and that because he did not receive such notice, he could only have been sentenced to a maximum often years. (Br. Supp. § 2255 Mot. 10, ECF No. 56.)
Under the ACCA,
[i]n the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
18 U.S.C. § 924(e)(1). "There is no requirement that the government list, either in the indictment or 'in some formal notice, ' the predicate convictions on which it will rely for a section 924(e) enhancement." United States v. O'Neal 180 F.3d 115, 125 (4th Cir. 1999) (citing United States v. Tracy, 36 F.3d 187, 198 (1st Cir. 1994); United States v. Alvarez, 972 F.2d 1000, 1006 (9th Cir. 1992)); cf. United States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005) ("It is thus clear that the Supreme Court continues to hold that the Sixth Amendment (as well as due process) does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt."). Moreover, "[a]lthough a defendant does have a right to adequate notice of the government's plan to seek ...