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United States v. Gilmer

United States District Court, W.D. Virginia, Harrisonburg Division

September 20, 2017

UNITED STATES OF AMERICA
v.
DELMAR SHERMAN GILMER, JR., Petitioner.

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI, CHIEF UNITED STATES DISTRICT JUDGE.

         Delmar Sherman Gilmer, Jr., a federal inmate proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government has filed a motion to dismiss, and Gilmer has responded, making this matter ripe for consideration. After reviewing the record, the court concludes that the government's motion to dismiss must be granted and Gilmer's § 2255 motion must be dismissed.

         I.

         On August 17, 2000, a federal grand jury charged Gilmer with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846. He pleaded guilty, pursuant to a written plea agreement. The Presentence Investigation Report ("PSR") recommended a guideline imprisonment range of 262 to 327 months' incarceration because it concluded that he qualified as a career offender. PSR ¶¶ 22, 66, ECF No. 224. The court sentenced Gilmer to a total of 262 months' imprisonment. Gilmer did not appeal. Gilmer filed this § 2255 motion alleging that the district court imposed an unconstitutional sentence in light of Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), that he received ineffective assistance because counsel failed to investigate his case and raise a Johnson argument at sentencing, and that the court erred by failing to take into consideration his minimal participation in the conspiracy.

         The court appointed the Federal Public Defender's Office to represent Gilmer and provide supplemental briefing, if necessary, in light of Johnson, pursuant to Standing Order 2015-5. Subsequently, the Federal Public Defender's Office declined to file additional pleadings and filed a motion to withdraw as counsel, which the court granted. Notice of No Additional Filing at 1, ECF No. 215; Order, ECF No. 217.

         II.

         To 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). Gilmer 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).

         A. Career Offender Designation

         Gilmer argues that following the Supreme Court's decision in Johnson, the district court impermissibly sentenced him as a career offender. This claim lacks merit.

         The PSR recommended that Gilmer receive an increased sentence under the United States Sentencing Guidelines ("U.S.S.G.") because he qualified as a career offender in that he, had "at least two prior felony convictions of either a crime of violence or a controlled substance offense, " pursuant to U.S.S.G. § 4B1.1. PSR¶ 22, ECF No. 224. Although the PSR did not specify which of his prior convictions were used to support the career offender designation, Gilmer has two prior felony controlled substance offense convictions: a 1990 conviction for conspiracy to distribute cocaine, PSR ¶ 30 and a 1991 conviction for conspiracy to distribute and possession of cocaine, PSR ¶ 31.[1]

         Gilmer challenges the constitutionality of U.S.S.G. § 4B1.2(a), which defined a "crime of violence, " in part, as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another, " referred to as the "residual clause." He bases his argument on Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), in which the Supreme Court held that an identically worded residual clause in a federal statute, 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague and could not be used to increase a defendant's sentence. However, Gilmer's argument is without merit for many reasons. First, the Supreme Court in Beckles v. United States, held that the Guidelines are not subject to a similar constitutional challenge as they merely "guide the exercise of a court's discretion, " whereas statutes "fix the permissible range of sentences" that a defendant faces. 137 S.Ct. 886, 895 (2017). Second, Johnson did not affect the viability of a defendant's prior drug convictions; instead, it limited only the types of violent crimes that could be used to support an enhanced sentence. Therefore, Johnson has no applicability to Gilmer's sentence, and he was properly classified as a career offender.[2]

         B. Ineffective Assistance of Counsel

         Gilmer also argues that he received ineffective assistance because counsel failed to investigate his case and failed to raise a Johnson argument before the trial court. These claims, too, lack merit.

         First, Gilmer does not provide any factual basis to support his claim that defense counsel failed to investigate his case. "[V]ague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Dyess,730 F.3d 354, 359 (4th Cir. 2013) (internal quotation omitted); Nickerson v. Lee,971 F.2d 1125, 1136 (4th Cir. 1992) (noting that conclusory allegations of ineffective assistance of counsel, without factual support, are insufficient to raise ...


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