United States District Court, W.D. Virginia, Danville Division
2255 MEMORANDUM OPINION
Jackson L. Kiser Senior United States District Judge
Pereda-Morelos, a federal inmate proceeding pro se, filed a
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. The government filed a motion to
dismiss, and Pereda-Morelos has responded, making this matter
ripe for consideration. After reviewing the record, I will
grant the government's motion to dismiss and dismiss
Pereda-Morelos' § 2255 motion.
January 17, 2013, a federal grand jury charged Pereda-Morelos
in a superseding indictment with conspiracy to distribute and
possess with intent to distribute cocaine and
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C) and 846; distribution of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C),
distribution of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C); and two counts of
possession of a firearm in furtherance of a drag trafficking
crime, in violation of 18 U.S.C. §§ 924(c) and 2.
He pleaded guilty, in a written plea agreement, to one of the
§ 924(c) charges and the government agreed to dismiss
the remaining counts against him. The Presentence
Investigation Report ("PSR") noted that
Pereda-Morelos' guideline sentence was the minimum term
required by statute, or five years or 60 months. PSR
¶¶ 35, 36.
14, 2015, 1 sentenced Pereda-Morelos to the mandatory minimum
of 60 months' incarceration. Judgment at 2, ECF No. 71.
Pereda-Morelos did not appeal.
30, 2016, Pereda-Morelos filed this § 2255 motion
alleging that I imposed an unconstitutional sentence in light
of Johnson v. United States, 135 S.Ct. 2551, 2563
(2015). I appointed the Federal Public Defender's Office
to represent Pereda-Morelos and provide supplemental
briefing, if necessary, in light of Johnson,
pursuant to Standing Order 2015-5. The Federal Public
Defender's Office declined to file any additional
pleadings on Pereda-Morelos' behalf and moved to
withdraw, a motion which I granted. Notice at 1, ECF No. 83,
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his or her 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). Pereda-Morelos 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).
The ACCA Enhanced Sentence Structure
is not entitled to relief because his case is wholly
unaffected by the Johnson decision, which dealt
specifically with defendants who pleaded guilty to being
felons in possession of a firearm-a conviction to which
Pereda-Morelos did not plead guilty. Federal law prohibits
convicted felons from possessing firearms. 18 U.S.C. §
922(g). Defendants who violate this law are subject to a term
of up to ten years' imprisonment. 18 U.S.C. §
924(a)(2). However, when defendants convicted of a §
922(g) charge have three or more prior convictions for
"serious drug offenses" or "violent felonies,
" they qualify as armed career criminals under the Armed
Career Criminal Act ("ACCA"). Armed career
criminals face an increased punishment: a statutory mandatory
minimum of fifteen years' imprisonment and a maximum of
life. 18 U.S.C. § 924(e)(1).
Johnson, the Supreme Court invalidated part of the
definition of "violent felony" under the ACCA,
which limited the types of prior convictions that can be used
as predicates to increase the defendant's sentence. 18
U.S.C. § 924(e)(2)(B)(ii). The Supreme Court's
decision in Johnson announced a new rule of
constitutional law that applies retroactively to cases on
collateral review. Welch v. United States, 136 S.Ct.
1257, 1268 (2016). However, because Pereda-Morelos was not
sentenced as an armed career criminal, Johnson has
no bearing on his claims.
Johnson Claim and 18 U.S.C. § 924(c)
claims that his conviction for possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c), was invalidated by Johnson.
This claim is unavailing.
law provides for a separate consecutive sentence for any
person convicted of possessing a firearm in furtherance of a
"crime of violence or drug trafficking crime." 18
U.S.C. § 924(c)(1)(A). Pereda-Morelos' conviction
resulted from possession of a firearm in further of a
"drug trafficking crime." Accordingly, only the
"drug trafficking crime" component of §
924(c)(1)(A) affected his sentence. Johnson has
never called into question convictions that involve serious
drug offenses. Whether or not the definition of "crime
of violence" in § 924(c)(1)(A) survives