United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
Carsteal Law, 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 Law 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
Law's motion to vacate will be denied.
indicted by a federal grand jury on June 15, 2006. Count One
of the indictment charged Law with distribution of five grams
or more of cocaine base, in violation of 21 U.S.C. §
841(a)(1). On February 21, 2007, Law entered a plea of guilty
to that count.
to sentencing, the probation officer prepared a presentence
report, which designated Law as a career offender under
§ 4B1.1 of the United States Sentencing Guidelines. The
career offender designation was based on two prior
convictions for controlled substance offenses: a 1998
conviction in the Circuit Court for the City of Roanoke for
possession with intent to distribute cocaine, and a 2003
conviction in the same court for possession with intent to
distribute cocaine. As a career offender, Law was subject to
an advisory guideline range of imprisonment of 188 to 235
appeared for sentencing on May 25, 2007. The court adopted
the presentence report and sentenced him to a term of
imprisonment of 188 months. Law did not appeal his conviction
6, 2016, Law 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), Law 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 Law and
provide supplemental briefing, if necessary, in light of
Johnson. The attorney subsequently declined to file
any additional pleadings on Law's behalf. Accordingly,
her appointment was terminated on September 27, 2016, and the
government was directed to respond to the pending § 2255
November 28, 2016, the government filed a motion to dismiss.
The court notified Law 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 a preponderance of
the evidence. Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958).
case, Law claims that he is entitled to resentencing because
he no longer qualifies as a career offender under §
4B1.1 of the Sentencing Guidelines. Upon review of the
record, the court concludes that this claim is without merit.
Section § 4B1.1 provides that a defendant is a career
offender if, among other factors, "the defendant has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense." U.S.S.G.
§ 4Bl.l(a). As summarized above, Law had two prior
felony convictions for controlled substance offenses at the
time he committed the offense of conviction. Accordingly, Law
was properly designated as a career offender.
seeking relief under § 2255, Law relies upon the Supreme
Court's decision in Johnson v. United States, in
which the Court held that the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e), is
unconstitutionally vague. Johnson, 135 S.Ct. at
2555-57. However, Johnson has no application here.
Law was not sentenced under the residual clause of the Armed
Career Criminal Act. Nor was his sentence based upon the
residual clause previously contained in § 4B1.2 of the
Sentencing Guidelines. Instead, Law was designated as a
career offender based on two prior felony convictions for
controlled substance offenses. Because the definition of a
"controlled substance offense" was not called into
question by Johnson, the decision has no effect on
the propriety of Law's sentence. See United States v.
Reid, No. 16-4318, 2016 U.S. App. LEXIS 21350, at *2