United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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
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).
Career Offender Designation
argues that following the Supreme Court's decision in
Johnson, the district court impermissibly sentenced
him as a career offender. This claim lacks merit.
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.
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.
Ineffective Assistance of Counsel
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.
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 ...