United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Chief United States District Judge
Edward Miller, a federal inmate proceeding pro se, filed this
action as a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. The government has
filed a motion to dismiss, and the time allotted for Miller
to respond has expired, making the matter ripe for
consideration. For the reasons that follow, the
government's motion to dismiss will be granted and
Miller's motion to vacate will be denied.
27, 2011, a federal grand jury returned an indictment
charging Miller with distribution of a detectable amount of
powder cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). At the time of the offense, Miller had two
prior felony convictions for controlled substance offenses: a
1997 conviction in the Circuit Court for the City of
Charlottesville for possession with intent to distribute
cocaine, and a 2009 conviction in the same court for
distribution of cocaine. Consequently, the government filed a
notice of enhanced punishment, pursuant to 21 U.S.C. §
851, on October 25, 2011. As a result of the prior
convictions, the maximum term of imprisonment for the charged
offense was 30 years. See 21 U.S.C. §
December 5, 2011, Miller entered a plea of guilty to the
offense charged in the indictment. Prior to sentencing, the
probation officer prepared a presentence report, which
designated Miller as a career offender under § 4B1.1 of
the United States Sentencing Guidelines, and calculated an
advisory guideline range of imprisonment of 188 to 235 months
based on that provision.
appeared for sentencing on March 2, 2012. During the hearing,
defense counsel argued that Miller's 1997 conviction,
incurred when he was seventeen, should not be counted in his
criminal history or treated as a predicate conviction for
purposes of the career offender provision. Pursuant to §
4A 1.2(d) of the Sentencing Guidelines, a defendant receives
three criminal history points under § 4A 1.1 (a) for an
offense committed prior to the age of eighteen, "[i]f
the defendant was convicted as an adult and received a
sentence of imprisonment of more than one year and one
month." The term "sentence of imprisonment"
refers only to the portion of the sentence that was not
suspended. U.S.S.G. § 4A1.2(b)(2). The term also
includes any term of imprisonment imposed upon revocation of
probation for the offense. See U.S.S.G. §
4A1.2(k). The prior sentence is counted as long as it was
imposed "within fifteen years of the defendant's
commencement of the instant offense, " or "resulted
in the defendant being incarcerated during any part of such
fifteen-year period." U.S.S.G. § 4A1.2(e)(1).
was sentenced for the 1997 offense in 1999. He received a
ten-year term of imprisonment, all of which was suspended,
along with a four-year term of probation. He subsequently
violated the conditions of probation in 2000 and served one
year in prison. His probation was revoked again in 2002 and
2004. On each occasion, after a period of detention before
the revocation hearing, Miller was sentenced to time served.
The court ultimately determined that Miller had been
imprisoned for at least one year and one month for the 1997
offense, making it a countable conviction and a proper
predicate for the career offender provision. Accordingly, the
court overruled the defendant's objection.
court then decided that the career offender designation
overstated Miller's criminal history, and that a sentence
within the career offender range of 188 to 235 months would
be unreasonable. The court also decided that a sentence
within the guideline range that would apply if Miller were
not a career offender would understate his criminal history
and be similarly unreasonable. After considering the
sentencing factors set forth in 18 U.S.C. § 3553(a), the
court determined that a term of imprisonment of 84 months was
appropriate in the defendant's case.
appealed his sentence to the United States Court of Appeals
for the Fourth Circuit. On appeal, Miller argued that his
1997 drug conviction should not have been relied upon to
establish his career offender status. The Fourth Circuit
rejected Miller's argument and concluded that
"Miller was correctly sentenced as a career
offender." United States v. Miller, 495
F.App'x 376, 378 (4th Cir. 2012). The Fourth Circuit
further concluded that any purported error was harmless and
that Miller was not entitled to resentencing. See
id. ("We are satisfied that resentencing is not
required here because the district court correctly determined
that Miller was a career offender and exercised its
discretion to determine the appropriate sentence in light of
the § 3553(a) factors.").
27, 2016, Miller moved to vacate his sentence under 28 U.S.C.
§ 2255. Relying on the United States Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), Miller argues that he no longer qualifies as a career
offender and, thus, that he is entitled to resentencing.
to Standing Order 2015-5, an attorney in the Office of the
Federal Public Defender was appointed to represent Miller and
provide supplemental briefing, if necessary, in light of
Johnson. The attorney subsequently declined to file
any additional pleadings and moved to withdraw from further
representation. That motion was granted on August 22, 2016,
and the government was directed to respond to the pending
§ 2255 motion.
October 26, 2016, the government filed a motion to dismiss.
The court notified Miller of the government's motion, as
required by Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), and gave him 21 days in which to file a response.
As of this date, no response has been filed. The matter is
now ripe for review.
2255 sets forth four grounds on which a prisoner in federal
custody may collaterally attack his sentence: (1) "the
sentence was imposed in violation of the Constitution or laws
of the United States"; (2) "the court was without
jurisdiction to impose such sentence"; (3) "the
sentence was in excess of the maximum authorized by law,
" or (4) the sentence "is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). The
petitioner bears the burden of proof by ...