United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, United States District Judge.
Sharon James, a federal inmate currently serving a 48 month
sentence for drug offenses, has filed a Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.
ECF No. 273. On October 25, 2016, the United States submitted
a Motion to Dismiss, ECF No. 282, to which James has not
responded. For the reasons set forth below, the court GRANTS
the government's Motion to Dismiss.
September 2, 2014, James pled guilty to three drug-related
counts pursuant to a written plea agreement. ECF Nos. 129-32.
The charges arose out of a conspiracy in which James and five
co-defendants trafficked heroin and cocaine into southwest
Virginia. The Presentence Investigation Report
("PSR") recommended that James receive a total
offense level of 29 points under the 2014 United States
Sentencing Guidelines. PSR, ECF No. 206, ¶ 54. The 29 point
calculation included a two-point enhancement pursuant to
U.S.S.G. § 2D1.1(b)(1) (hereinafter the "gun
enhancement") for possession of a dangerous weapon
during the course of James' criminal conduct. PSR ¶
46. Based on a total offense level of 29 and a criminal
history category of I, the PSR concluded that James was
subject to a guideline imprisonment range of 87 to 108
months. PSR ¶ 80. Nevertheless, in light of James'
cooperation with investigators, the government filed a Motion
for Substantial Assistance (ECF No. 197) pursuant to U.S.S.G.
§ 5K1.1 and recommended a period of incarceration of 48
months. Government's Sentencing Memorandum, ECF No. 198,
sentencing hearing held on February 23, 2015, James objected
to the two-point gun enhancement included in the PSR, arguing
that the firearms providing the basis for the enhancement did
not belong to her; rather, a co-conspirator controlled and
possessed the firearms. James' Sentencing Memorandum, ECF
No. 182, at 6-7. James asserted that without the gun
enhancement the proper punishment range under the guidelines
was 57 to 71 months. James' Sentencing Memorandum at 8.
This lower range, James argued, should have served as the
starting point for the government's Motion for
Substantial Assistance and that a more appropriate sentence
was a period of incarceration of no more than one year and
one day. James' Sentencing Memorandum at 14.
court heard testimony from James and from Sami Cilek, the
United States Probation Officer who authored the PSR. The
court overruled James' objection to the two-point gun
enhancement, finding the evidence sufficient for the
enhancement. The court found James' total offense level
to be 29 and that the guideline imprisonment range was 87 to
108 months. However, the court granted the government's
Motion for Substantial Assistance and sentenced James to 48
months of incarceration and three years of supervised
now asks the court to resentence her without application of
the two-point gun enhancement. James proceeds pro
se, and therefore the court construes her motion liberally.
See Boag v. MacDougall, 454 U.S. 364, 365 (1982).
The court gleans from the motion that James raises three
arguments in' support of resentencing without the gun
enhancement: (1) the record shows it was "clearly
improbable that the weapon[s were] connected with the
offense, " and therefore should not have been considered
under the guidelines, U.S.S.G. § 2D1.1, comment, (n.11);
(2) that the possession of the firearms should have been
charged in the indictment and proven by a jury; and (3) that
the Supreme Court's holding in Johnson v. United
States. 135 S.Ct. 2551 (2015) provides James relief. As
outlined below, James' arguments fail on procedural and
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that her sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such a sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). If a petition alleges a sentencing
error that is neither constitutional nor jurisdictional,
"a district court lacks authority to review it unless it
amounts to a fundamental defect which inherently results in a
complete miscarriage of justice." United States v.
Foote. 784 F.3d 931, 936 (4th Cir.) (quoting Davis
v. United States. 417 U.S. 333, 346). James bears the
burden of proving grounds for a collateral attack. Jacobs
v. United States. 350 F.2d 571, 574 (4th Cir. 1965).
petition under § 2255 must adhere to strict statute of
limitations requirements. Specifically, a petitioner must
file a § 2255 motion within one year of the latest date
(1) the judgment of conviction becomes final;
(2) the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the facts supporting the claim or claims presented could
have been discovered through the ...