United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, CHIEF UNITED STATES DISTRICT JUDGE
Naieem Trice, 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 Trice 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
Trice's motion to vacate will be denied.
was indicted by a federal grand jury on May 2, 2013. Count
One of the indictment charged Trice with conspiracy to
possess with intent to distribute 100 grams or more of
heroin, in violation of 21 U.S.C. § 846. Count Two
charged Trice with possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1). On May
29, 2014, a jury convicted Trice of both counts.
to sentencing, the probation officer prepared a presentence
report, which designated Trice as a career offender under
§ 4B1.1 of the United States Sentencing Guidelines. The
career offender designation was based on three prior
convictions in New Jersey state courts for controlled
substance offenses. As a career offender, Trice was subject
to an advisory guideline range of imprisonment of 262 to 327
appeared for sentencing on October 2, 2014. During the
hearing, defense counsel objected to the career offender
designation on the basis that the government's evidence
was insufficient to establish the existence of the predicate
convictions. The court overruled the objection and concluded
that Trice qualified for the career offender designation.
However, based on multiple factors, the court both departed
and varied from the career offender range, and imposed a
151-month term of imprisonment.
appealed his convictions and sentence to the United States
Court of Appeals for the Fourth Circuit. On appeal, Trice
argued that he was improperly sentenced as a career offender.
The Fourth Circuit rejected Trice's argument and affirmed
the court's judgment. See United States v.
Trice. 621 F.App'x 151, 154 (4th Cir. 2015)
("The district court properly relied on certified
judgments from New Jersey state courts reflecting Trice's
prior felony drug convictions. We discern no error in the
court's conclusion that Trice was a career
24, 2016, Trice 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), Trice 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 Trice and
provide supplemental briefing, if necessary, in light of
Johnson. The attorney subsequently declined to file
any additional pleadings on Trice's behalf. Accordingly,
her appointment was terminated on August 5, 2016, and the
government was directed to respond to the pending § 2255
September 15, 2016, the government filed a motion to dismiss.
The court notified Trice 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, Trice 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, Trice had at least two
prior felony convictions for controlled substance offenses at
the time he committed the offense of conviction. Accordingly,
Trice was properly designated as a career offender.
seeking relief under § 2255, Trice 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.
Trice 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, Trice was designated as a
career offender based on at least 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 Trice's sentence.
See United States v. Reid, No. 16-4318, 2016 U.S.
App. LEXIS 21350, ...