United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, CHIEF UNITED STATES DISTRICT JUDGE
Terzel-Jermaine White, 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, to which White has
responded, making the matter ripe for consideration. For the
reasons that follow, the government's motion to dismiss
will be granted and White's motion to vacate will be
was indicted by a federal grand jury on January 26, 2012.
Count Three of the indictment charged White with distribution
of a measurable quantity of cocaine base, in violation of 21
U.S.C. § 841(a)(1). On April 18, 2012, White entered a
plea of guilty to that count.
to sentencing, the probation officer prepared a presentence
report, which designated White 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 2006
conviction in the United States District Court for the
Western District of Virginia for possession with intent to
distribute cocaine base, and a 2006 conviction in the Circuit
Court for the County of Roanoke for distribution of cocaine.
As a career offender, White was subject to an advisory
guideline range of imprisonment of 151 to 188 months.
appeared for sentencing on July 17, 2012. During the hearing,
defense counsel acknowledged that White technically qualified
as a career offender. Defense counsel argued, however, that a
sentence within the career offender range of 151 to 188
months would be inequitable under the circumstances in
White's case. The court ultimately adopted the
presentence report and found that White qualified as a career
offender. However, the court agreed with defense counsel that
a sentence within the career offender range would be
"too harsh for the crime that [the defendant]
committed." Sentencing H'rg Tr. 24. After
considering the sentencing factors set forth in 18 U.S.C.
§ 3553(a), the court determined that a term of
imprisonment of 96 months was appropriate. White did not
appeal his conviction or sentence.
13, 2016, White 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), White 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 White 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. The court granted the attorney's motion
on May 20, 2016, and directed the government to respond to
the pending § 2255 motion.
27, 2016, the government filed a motion to dismiss. The
following day, the government filed an amended motion to
dismiss. The court notified White of the government's
amended 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. White filed a response to the motion on
August 15, 2016. 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, White 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.
§ 4B 1.1(a). As summarized above, White had two prior
felony convictions for controlled substance offenses at the
time he committed the offense of conviction. Accordingly,
White was properly designated as a career offender.
seeking relief under § 2255, White 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.
White 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, White 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 White's sentence. See United States
v. Reid, No. 16-4318, 2016 U.S. App. LEXIS 21350, at *2