United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Hamm, a federal inmate proceeding pro se, submitted
this motion under 28 U.S.C. § 2255 to vacate, set aside,
or correct his sentence ("§ 2255 Motion, " ECF
No. 116). In his § 2255 Motion, Hamm raises the
following claims for relief:
Claim One: "Mr. Hamm's prior convictions do not
qualify as predicates for career offender enhancement and he
should be remanded." (Id. at 4.)
Claim Two: "Court should not enforce an appellate waiver
against Mr. Hamm and should follow the bar concluding it is a
bad contract." (Id. at 5.)
Government has responded that Hamm's claims lack merit.
(ECF No. 125.) Hamm has filed a Reply. (ECF No. 129.) For the
reasons set forth below, Hamm's § 2255 Motion will
December 13, 2011, a grand jury charged Hamm with one count
of conspiracy to commit robbery affecting commerce, in
violation of 18 U.S.C. § 1951(a). (Superseding
Indictment 1-5, ECF No. 28.) On January 18, 2012, a grand
jury returned a Second Superseding Indictment, again charging
Hamm with one count of conspiracy to commit robbery affecting
commerce, in violation of 18 U.S.C. § 1951(a). (Second
Superseding Indictment 1-5, ECF No. 39.) On March 12, 2012,
Hamm entered into a Plea Agreement and pled guilty to Count
One of the Second Superseding Indictment. (Plea Agreement
¶ 1, ECF No. 56.)
to sentencing, a Probation Officer determined that Hamm
qualified for the career offender enhancement, stating:
The defendant qualifies for a sentence enhancement under the
Career Offender section, as defined in Chapter 4, Part B, of
the Sentencing Guidelines. The defendant was at least 18
years old at the time he committed the instant offense; the
instant offense of conviction is a felony that is a crime of
violence; and, the defendant has at least two prior felony
convictions for a crime of violence.
Investigation Report ("PSR") ¶ 59, ECF No.
65.) Specifically, Hamm was previously convicted of the
following crimes of violence in North Carolina: (1)
conspiracy to commit common law robbery (id. ¶
25); (2) common law robbery (id. ¶ 26); and,
(3) conspiracy to commit the felony of discharging a firearm
into an occupied dwelling (id. ¶ 28).
3, 2012, the Court entered judgment against Hamm and
sentenced him to 188 months of imprisonment. (J. 2, ECF No.
89.) On motion by the Government, the Court also dismissed
the Superseding Indictment against Hamm. (Id. at 1.)
Hamm did not appeal.
CAREER OFFENDER ENHANCEMENT
Claim One, Hamm asserts that his "prior convictions do
not qualify as predicates for career offender enhancement and
he should be remanded." (§ 2255 Mot. 4.)
Specifically, Hamm contends that the Supreme Court's
recent decision in Johnson v. United States, 135
S.Ct. 2551 (2015), renders his career offender enhancement
unconstitutional. (Br. Supp. § 2255 Mot. 2, ECF No.
Johnson And The Armed Career Criminal Act ("ACCA")
Supreme Court has noted,
[u]nder the [ACCA] ¶ 1984, a defendant convicted of
being a felon in possession of a firearm faces more severe
punishment if he has three or more previous convictions for a
"violent felony, " a term defined to include any
felony that "involves conduct that presents a ...