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United States v. Barker

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

November 8, 2017

UNITED STATES OF AMERICA
v.
RASEAN BARKER, Petitioner. Criminal Action

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI, UNITED STATES DISTRICT JUDGE

         This 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.

         I.

         On 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").

         Barker 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.

         The court sentenced Barker to a total of 180 months' imprisonment on both counts, to be served concurrently.[1] 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).

         II.

         To 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).

         Barker's 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 counts.

         For the 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 ...

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