United States District Court, W.D. Virginia, Danville Division
2255 MEMORANDUM OPINION
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
Servin-Terrasas, a federal inmate proceeding pro se, filed a
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. The government filed a motion to
dismiss, and the time within which Servin-Terrasas had to
respond has expired, making this matter ripe for
consideration. After reviewing the record, I conclude that
the government's motion to dismiss must be granted and
Servin-Terrasas' § 2255 motion must be dismissed as
January 18, 2006, a federal grand jury charged Servin-Terrasa
in a seven-count indictment with various drug distribution
crimes and firearm possession crimes. On June 1, 2006,
Servin-Terrasas pleaded guilty, pursuant to a written plea
agreement, to possession with intent to distribute more than
50 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a) and 841(b)(1)(A) ("Count
Five"), and to using and carrying a firearm during and
in relation to, and possessing a firearm in furtherance of, a
drug trafficking crime, in violation of 18 U.S.C. §
924(c) ("Count Six"). Plea Agree, at 2, ECF No. 24.
The government agreed to dismiss the remaining counts.
Presentence Investigation Report ("PSR")
recommended, for Count Five, a total offense level of 29, a
criminal history category of I, and an imprisonment range of
87 to 108 months. PSR ¶ 58, ECF No. 37. However because
the statutory mandatory minimum for the drag charge was 120
months, Servin-Terrasas' guideline range for that count
became 120 months. For Count Six, the mandatory minimum and
maximum term was five years to life imprisonment, to be
served consecutively to any other sentence imposed.
Id. ¶ 57.
September 5, 2006, I sentenced Servin-Terrasas to the
mandatory minimum 120 months for Count Five and the mandatory
minimum 60 months for Count Six, to run consecutively, for a
total of 180 months' imprisonment. Judgment at 2, ECF No.
28. Servin-Terrasas appealed; the Fourth Circuit Court of
Appeals affirmed his conviction and sentence. United
States v. Servin-Terrasas. 224 F.App'x 249, 250 (4th
Cir. 2007). Servin-Terrasas filed a writ of certiorari to the
Supreme Court of the United States, which was denied.
Servin-Terrasas v. United States, 552 U.S. 921 (Mem)
20, 2016, Servin-Terrasas filed this § 2255 motion
alleging that I imposed an unconstitutional sentence in light
of Johnson v. United States, 135 S.Ct. 2551, 2563
(2015). I appointed the Federal Public Defender's Office
to represent Servin-Terrasas and provide supplemental
briefing, if necessary, in light of Johnson,
pursuant to Standing Order 2015-5. The Federal Public
Defender's Office declined to file any additional
pleadings on Servin-Terrasas' behalf and moved to
withdraw, a motion which I granted. Notice at 1, ECF No. 115,
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). Servin-Terrasas bears the burden of
proving grounds for a collateral attack by a preponderance of
the evidence. Miller v. United States. 261 F.2d 546,
547 (4th Cir. 1958).
The ACCA Enhanced Sentence Structure
law prohibits convicted felons from possessing firearms. 18
U.S.C. § 922(g). Defendants who violate this law are
subject to a term of up to ten years' imprisonment. 18
U.S.C. § 924(a)(2). However, when defendants convicted
of a § 922(g) charge have three or more prior
convictions for "serious drug offenses" or
"violent felonies, " they qualify as armed career
criminals under the ACCA. Armed career criminals face an
increased punishment: a statutory mandatory minimum of
fifteen years' imprisonment and a maximum of life. 18
U.S.C. § 924(e)(1).
Johnson, the Supreme Court invalidated part of the
definition of "violent felony" under the ACCA. 135
S.Ct. at 2563. The ACCA defines a "violent felony"
[A]ny crime punishable by imprisonment for a term exceeding
one year . . . that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the ...