United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge.
Ronald Edward Wooten, a federal inmate proceeding pro se,
filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. He challenges his
151-month sentence following a guilty plea to drug-related
crimes. Wooten asserts that he deserves relief following the
Supreme Court's recent decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). The government filed a
motion to dismiss, and the time within which Wooten had to
respond as expired, making this matter ripe for disposition.
I conclude that Wooten's petition is untimely, and I
grant the government's motion to dismiss.
October 23, 2008, a federal grand jury returned a two-count
Indictment against Wooten charging him with two counts of
distributing a measurable quantity of a mixture or substance
containing cocaine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C). Wooten pleaded guilty to one count,
pursuant to a written Plea Agreement, in exchange for the
dismissal of the remaining count. Plea Agree, at 1-2, ECF No.
Presentence Investigation Report ("PSR") was
created prior to sentencing and recommended that Wooten
receive an enhanced sentence 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." U.S.S.G. § 4Bl.l(a). The PSR
listed the following prior convictions as support for
Wooten's career offender enhancement: a 1998 North
Carolina conviction for cocaine trafficking, a 2003 Virginia
conviction for distribution of cocaine, and a 2003 Virginia
conviction for five counts of distribution of cocaine. PSR
¶¶ 18, 25, 28, and 30, ECF No. 44. It recommended
an advisory guideline range of 151 to 188 months. On July 23,
2010, 1 sentenced Wooten to 151 months' imprisonment.
Judgment at 2, ECF No. 42. Wooten did not appeal.
§ 2255 motion, Wooten argues that in light of
Johnson, 135 S.Ct. 2551, he should not have been
sentenced as a career offender because his drug convictions
no longer count as predicate offenses. However,
Johnson had no effect on predicate controlled
substance offenses, instead, it circumscribed the types of
predicate convictions that qualified as crimes of violence.
135 S.Ct. at 2563. In addition, the Supreme Court, in
Beckles v. United States. 137 S.Ct. 886, 895 (2017),
held that the type of constitutional infirmity that existed
in the Armed Career Criminal statute, 18 U.S.C. §
924(e)(2)(B), which was addressed in Johnson, did
not exist with regard to the purely advisory sentencing
guidelines. Accordingly, Wooten cannot establish any error,
constitutional or otherwise, with regard to his career
offender status or his sentence.
extent that Wooten is arguing that, following the Fourth
Circuit decision in United States v. Simmons. 649
F.3d 247 (4th Cir. 2011), his prior North Carolina drug
conviction no longer qualifies as a predicate offense because
it is not a felony offense punishable by a year or more, this
argument is unavailing. Wooten was sentenced to 35 to 42
months for that conviction, a term in excess of one year. PSR
¶ 25, ECF No. 44. Moreover, even if Wooten had
predicates that had been used to support his career offender
status that were later reclassified as misdemeanors, he would
not be entitled to relief. United States v. Foote.
784 F.3d 931, 943 (4th Cir. 2015) (holding that a career
offender designation, later nullified by Simmons, is
not cognizable on collateral review because although
classification as a career offender under the guidelines
affects the sentence imposed, such a designation does not
"affect the lawfulness of the sentence itself-then or
now" as long as the sentence imposed does not exceed the
addition, Wooten raises two other claims; he asserts that his
counsel provided ineffective assistance by coercing him to
plead guilty without explaining the consequences of doing so
and that he should not be classified as a career offender
under the doctrine of nunc pro tunc. Wooten has waived his
right to bring such claims, as his plea agreement included a
collateral review waiver, which is binding as his guilty plea
was knowingly and voluntarily made. United States v.
Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). These
claims also fail on the merits. Wooten's plea agreement
noted that he had reviewed every part of the agreement with
counsel and that he had not been coerced into pleading
guilty. Plea Agree, at 11-12, ECF No. 36. Moreover a nunc pro
tunc order may be used to correct mistakes and omissions in
the record but not to change decisions in earlier cases, and
therefore, is inapplicable in this case. Glvnne v. Wilmed
Healthcare. 699 F.3d 380, 383-84 (4th Cir. 2012).
Wooten's has not shown that he is eligible for relief
under § 2255 following Johnson and his petition
must be dismissed as untimely. See 28 U.S.C. §
reasons stated, I grant the government's motion to
dismiss and dismiss the motion to vacate, set aside, or
correct sentence as untimely. Based upon my finding that
Wooten has not made the requisite substantial showing of a
denial of a constitutional right as ...