United States District Court, W.D. Virginia, Roanoke Division
AMENDED MEMORANDUM OPINION 
Glen E. Conrad Chief United States District Judge
Edward Todd, 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 Todd 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
Todd's motion to vacate will be denied.
was indicted by a federal grand jury on May 7, 2015. Count
One of the indictment charged Todd with possession of a
firearm after having been convicted of a felony, in violation
of 18U.S.C. § 922(g)(1). On August 11, 2015, Todd
entered a plea of guilty to that count.
to sentencing, the probation officer prepared a presentence
report. A review of the presentence report reveals that Todd
was not deemed an armed career criminal under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e), or a career offender under § 4B1.1 of the United
States Sentencing Guidelines. Instead, Todd was assigned a
base offense level of 14 under § 2K2.1 of the Sentencing
Guidelines. He received a two-level enhancement for
possessing a stolen firearm, and a four-level enhancement for
possessing the firearm in connection with another felony
(specifically, possession with intent to distribute heroin).
See U.S.S.G. § 2K2.1(b)(4)(A), (b)(6)(B). After
applying a three-point reduction for acceptance of
responsibility, the probation officer calculated a total
offense level of 17. See U.S.S.G. § 3E1.1 (acceptance of
responsibility). The total offense level, considered in
combination with Todd's criminal history category of VI,
resulted in an advisory guideline range of imprisonment of 51
to 63 months.
appeared for sentencing on November 17, 2015. The court
adopted the presentence report and sentenced him to a term of
imprisonment of 51 months. Todd did not appeal his conviction
23, 2016, Todd moved to vacate his sentence under 28 U.S.C.
§ 2255 based on the United States Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). Pursuant to Standing Order 2015-5, an attorney in the
Office of the Federal Public Defender was appointed to
represent Todd 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 July 20, 2016, and the government was directed
to respond to the pending § 2255 motion.
September 15, 2016, the government filed a motion to dismiss.
The court notified Todd 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, Todd claims that he is entitled to resentencing based
on the Supreme Court's decision in Johnson v. United
States, in which the Court held that the residual clause
of the ACCA is unconstitutionally vague. Johnson,
135 S.Ct. at 2555-57. It is clear from the record, however,
that Johnson is not applicable to the
defendant's case. Todd was not sentenced as an armed
career criminal under the ACCA, and none of the provisions
utilized in calculating his advisory guideline range are
implicated by the Supreme Court's decision. Accordingly, Todd
is not entitled to relief under § 2255.
reasons stated, the court will grant the government's
motion to dismiss and deny Todd's § 2255 motion.
Additionally, because Todd has failed to make a substantial
showing of the denial of a constitutional right, the court
will deny a certificate of appealability. See 28
U.S.C. § 2253(c).
Clerk is directed to send certified copies of this memorandum
opinion and the accompanying order to the ...