United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI, UNITED STATES DISTRICT JUDGE
matter comes before the court on remand from the United
States Court of Appeals for the Fourth Circuit following this
court's dismissal of Resean Barker's motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 as untimely. The court failed to address a
new claim that Barker raised in his reply brief in response
to the government's motion to dismiss regarding the
maximum sentence that he faced for his drug conviction.
Accordingly, the court considers that issue here, and
concludes that Barker is entitled to be resentenced.
September 26, 2013, a federal grand jury charged Barker with
conspiracy to possess with intent- to distribute marijuana,
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(D)
("Count One") and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924(e) ("Count Two").
pleaded guilty to both counts pursuant to a written plea
agreement. The Presentence Investigation Report
("PSR") recommended a guideline imprisonment range
of 188 to 235 months because Barker qualified as an armed
career criminal under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. §§ 922(g) and 924(e).
PSR ¶ 18, 49, ECF No. 38.
court sentenced Barker to a total of 180 months'
imprisonment on both counts, to be served
concurrently. Barker did not appeal. Barker filed a
§ 2255 motion alleging that me court imposed an
unconstitutional sentence in light of Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015). In his reply,
Barker asserted a new claim, that he was sentenced above die
statutory maximum for Count One. In an October 28, 2016
Order, the court dismissed Barker's § 2255 motion as
untimely, concluding that he was properly sentenced as an
armed career criminal. ECF No. 60. However, the court did not
address die claim that Barker raised in his reply regarding
the sentence imposed on Count One. Barker appealed die
dismissal of his § 2255 motion to the Fourth Circuit
Court of Appeals. Noting that this court did not address the
"new claim regarding the statutory maximum sentence for
his drug offense" raised in Barker's reply, it
remanded for consideration. United States v. Barker,
692 Fed.Appx. 724 (4th Cir. 2017) (unpublished).
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his sentence was
"imposed in violation of die Constitution or laws of die
United States;" (2) that "die court was without
jurisdiction to impose such a sentence;" or (3) that
"the sentence was in excess of die maximum authori2ed by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). Barker bears die 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).
sentence for Count One was imposed in violation of the laws
of the United States. For a drug conviction under 21 U.S.C.
§§ 846 and 841(b)(1)(D), die maximum term of
imprisonment that Barker could have faced was five years, or
60 months. 21 U.S.C. §§ 841 (a) and (b)(1)(D). For
Count Two, a conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1),
he faced a statutory minimum of 15 years or 180 months. 18
U.S.C. § 924(e). Yet, Barker was sentenced to a
concurrent term of 180 months' incarceration on both
reasons set forth in the court's January 5, 2017
Memorandum Opinion, Barker's sentence of 180 months on
Count Two was proper and he has not raised a valid claim
under Johnson v. United States, 135 S.Ct. 2551
(2015). Although Barker's sentence on Count One was above
the statutory maximum, he is entitled to be resentenced on
Count One only if his § 2255 petition was timely filed.
A § 2255 petition must adhere to strict statute of
limitations requirements. A person convicted of a federal
offense must file a § 2255 motion within one year of the
latest date on which:
(1) the judgment of conviction becomes final;
(2) the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the facts supporting the claim or claims presented could
have been discovered through the ...