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United States v. Hamm

United States District Court, E.D. Virginia, Richmond Division

April 27, 2017

UNITED STATES OF AMERICA
v.
VANCE HAMM

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Vance 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.)[1]
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.)

         The 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 be denied.

         I. PROCEDURAL HISTORY

         On 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.)

         Prior 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.

         (Pre-Sentence 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).

         On July 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.

         II. CAREER OFFENDER ENHANCEMENT

         In 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. 118.)

         A. Johnson And The Armed Career Criminal Act ("ACCA")

         As the Supreme Court has noted,

[u]nder the [ACCA] ΒΆ 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 ...

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