United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge.
Yarnell Brown, a federal inmate proceeding pro se,
has moved to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255. The government has filed a motion to
dismiss, to which Brown has responded, making the matter ripe
for consideration. For the reasons that follow, the
government's motion to dismiss will be granted and
Brown's motion to vacate will be denied.
August 13, 2015, a grand jury in the Western District of
Virginia returned an indictment against Brown, charging him
with possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). After unsuccessfully
moving to suppress the evidence against him, Brown entered a
conditional plea of guilty to the offense charged. As part of
his written plea agreement, Brown acknowledged that he would
be subject to a mandatory minimum term of imprisonment of
fifteen years under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), if the court
determined that he had at least three prior convictions for
serious drug offenses and/or violent felonies. Plea Agreement
at 1, Docket No. 40. Brown retained the right to appeal such
determination, as well as the ruling on his suppression
motion. Id. at 7.
preparation for sentencing, a probation officer prepared a
presentence investigation report ("PSR") that
designated Brown as an armed career criminal under the ACCA.
The probation officer noted that Brown had three prior
convictions for felony drug offenses that were committed on
different occasions, and a prior conviction for unlawfully
shooting into an occupied dwelling. The probation officer
listed the following prior felony drug convictions to support
the armed career criminal designation: a September 11, 2006
conviction in the Circuit Court for the City of Roanoke for
possessing cocaine with intent to distribute (Case No.
CR06-744), and July 12, 2010 convictions in the same court
for selling heroin and cocaine (Case Nos. CR09-1934 &
CR09-1935). The probation officer noted that the latter
offenses occurred on November 19, 2008 and December 10, 2008,
respectively. As an armed career criminal, Brown was subject
to a mandatory term of imprisonment of fifteen years to life
under 18 U.S.C. § 924(e), and an advisory range of
imprisonment of 188 to 235 months under the United States
Sentencing Guidelines. Defense counsel did not file any
objections to the PSR.
appeared for sentencing on May 6, 2016. At that time, the
court adopted the PSR in its entirety, including the
determination that Brown qualified as an armed career
criminal. The court ultimately imposed the mandatory minimum
term of imprisonment of 180 months.
direct appeal, Brown challenged the denial of his motion to
suppress. He did not appeal the armed career criminal
designation. Brown's conviction was affirmed by the
United States Court of Appeals for the Fourth Circuit on
January 31, 2017.
15, 2017, Brown moved to vacate his sentence under 28 U.S.C.
§ 2255. Brown's motion and the government's
motion to dismiss are ripe for review.
2255 sets forth four grounds on which a prisoner in federal
custody may collaterally attack his sentence: (1) "the
sentence was imposed in violation of the Constitution or laws
of the United States"; (2) "the court was without
jurisdiction to impose such sentence"; (3) "the
sentence was in excess of the maximum authorized by law,
" or (4) the sentence "is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). The
petitioner bears the burden of proof by a preponderance of
the evidence. Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958).
§ 2255 motion, Brown asserts the following claims for
relief: (1) that the indictment failed to notify him of the
possibility of an enhanced sentence under the ACCA; (2) that
the court erred in determining that he qualified as an armed
career criminal; and (3) that his attorney was ineffective in
failing to object to the armed career criminal designation.
For the following reasons, the court concludes that
Brown's claims lack merit.
Sufficiency of the Indictment
initially challenges the sufficiency of the indictment. Brown
claims that the possibility of an enhanced sentence under 18
U.S.C. § 924(e) "wasn't made evident until the
plea agreement, " and that the failure of the indictment
to charge a violation of § 924(e) violated his right to
due process. Def.'s Br. in Supp. of § 2255 Mot. at
3, Docket No. 64-1; see also Def.'s § 2255
Mot. at 3, Docket No. 66.
claim fails under controlling circuit precedent. See
United States v. Holman,521 Fed.Appx. 162, 163 (4th
Cir. 2013) (observing that controlling circuit precedent
defeated the defendant's claim that he was improperly
sentenced as an armed career criminal because the indictment
did not charge a violation of the ACCA). The Fourth Circuit
has repeatedly held that prior convictions used as a basis
for sentencing a defendant as an armed career criminal need
not be charged in an indictment or proven to a jury beyond a
reasonable doubt. Id. (citing United States v.
Cheek,415 F.3d 349, 352 (4th Cir. 2005)); see also
United States v. Thompson,421 F.3d 278, 284 n.4 (4th
Cir. 2005) (noting that an ...