United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge.
Dannette Mack, a federal inmate proceeding pro se, filed this
action as a motion to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255. The government has
filed a motion to dismiss, to which Mack has responded,
making the matter ripe for consideration. For the reasons
that follow, the government's motion to dismiss will be
granted and Mack's motion to vacate will be denied.
was indicted by a federal grand jury on December 13, 2007.
Count One of the indictment charged Mack with possession with
intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1). Count Two charged
her with possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c).
Count Three charged her with possession of a firearm after
having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1). Mack entered a plea of guilty to Counts One
and Two, pursuant to a written plea agreement, on April 14,
2008. Count Three was dismissed at sentencing in accordance
with the plea agreement.
to sentencing, the probation officer prepared a presentence
report, which designated Mack 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 2000
conviction in the Circuit Court for the City of Roanoke for
distribution of cocaine and possession with intent to
distribute cocaine, and a 2005 conviction in the same court
for possession with intent to distribute cocaine. As a career
offender, Mack was subject to an advisory guideline range of
imprisonment of 262 to 327 months for the controlled
substance offense, plus 60 months for the firearm offense.
appeared for sentencing on July 28, 2008. The court adopted
the presentence report and determined that Mack qualified for
the career offender designation. However, based on multiple
factors, the court varied from the career offender range, and
imposed a total term of imprisonment of 262 months. Mack did
not appeal her convictions or sentence.
1, 2009, the government moved to reduce Mack's sentence
for substantial assistance, pursuant to Federal Rule of
Criminal Procedure 35(b). The court granted the motion and
reduced Mack's total term of imprisonment to 180 months.
August 31, 2016, Mack moved to vacate her 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), Mack argues that she no longer
qualifies as a career offender and, thus, that she is
entitled to resentencing.
to Standing Order 2015-5, an attorney in the Office of the
Federal Public Defender was appointed to represent Mack 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 that motion on September
14, 2016, and directed the government to respond to the
pending § 2255 motion.
November 14, 2016, the government filed a motion to dismiss.
The court notified Mack of the government's motion, as
required by Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), and gave her 21 days in which to file a response.
After receiving an extension of time, Mack filed a response
to the government's motion on January 27, 2017. The
matter is now ripe for review.
2255 sets forth four grounds on which a prisoner in federal
custody may collaterally attack her 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, Mack claims that she is entitled to resentencing
because she 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, Mack had at least two
prior felony convictions for controlled substance offenses at
the time she committed the offense of conviction.
Accordingly, Mack was properly designated as a career
seeking relief under § 2255, Mack 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.
Mack was not sentenced under the residual clause of the Armed
Career Criminal Act. Nor was her sentence based upon the
residual clause previously contained in § 4B1.2 of the
Sentencing Guidelines. Instead, Mack was designated as a
career offender because she had 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 Mack's sentence.
See United States v. Reid, No. 16-4318, 2016 U.S.
App. LEXIS 21350, ...