Case Information
*1 cLEnIt% oFFleE u : n1::. eeuRT AT novlzki, vA FILED 0C1 1 2y2g1? IN TH E UN ITED STA TE S D ISTR ICT CO U R T
FO R TH E W ESTERN D ISTR ICT O F VIR G INIA sv, ftw auL c jjouix cL D AN V ILL E DIVISIO N DEPUFY CLER UN ITED STATE S O F AM ERIC A Crim inal C ase N o. 4:08cr00037 ) ) ) M EM O R AN D U M O PINIO N V.
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RO N A LD ED W AR D W O O TE N , By: Jackson L . K iser ) )
Petitioner. Senior United States District Judge
Petitioner Ronald Edward W ooten, a federal inmate proceeding pro se, fled a m otion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. j 2255. He challenges his lsl-month sentence following a guilty plea to drug-related crim es. W ooten asserts that he deserves relief following the Suprem e 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 W ooten had to respond as expired, m aldng this m atter ripe for disposition. I conclude that W ooten's petition is tmtim ely, and I grant the government's m otion to dismiss.
On October 23, 2008, a federal grand jlzry rettunled a two-cotmt Indictment against W ooten charging him with two counts of distributing a m easlzrable qumltity of a m ixttzre or substance containing cocaine, in violation of 21 U.S.C. jj 841(a)(1) and (b)(1)(C). W ooten pleaded guilty to one count, ptlrsuant to a written Plea Agreem ent, in exchange for the dism issal . of the rem aining count. Plea Agree. at 1-2, ECF No. 36.
A Presentence Investigation Repol-t (1TSR'') was created prior to sentencing and recom m ended that W ooten receive an enhanced sentence because he qualifed as a career offender in that he had SGat least two prior felony convictions of either a crim e of violence or a controlled substance offense.'' U.S.S.G. j 4B1.1(a). The PSR listed the following prior convictions as suppol't for W ooten's career offender enhancem ent: a 1998 N orth Carolina *2 conviction fo< cocaine traftk king, a 2003 Virginia convidion for distribution of cocaine and a 2003 Virginia conviction for iève counts of distribution of cocaine. PSR !! 18, 25, 28, and 30, ECF No. 44. lt recomm ended an advisory guideline range of 151 to 188 m onths. On July 23 , 2010, I sentenced W ooten to 151 m onths' im prisonment. Judgment at 2, ECF No. 42. W ooten did not appeal.
In his j 2255 motion, W ooten argues that in light of Johnson, 135 S. Ct. 2551, he should not have been sentenced as a career offender because his dl'ug convictions no longer count as predicate offenses. How ever, Johnson had no effect on predicate controlled substance offenses, instead, it circum scribed the types of predicate convictions that qualised as crim es of violence. 135 S. Ct. at 2563. ln addition, the Supreme Cotu't, in Beckles v. United States, 137 S. Ct. 886, 895 (2017), held that the type of consét-uéonal infarnity that existed in the Armed Career Criminal stattzte, 18 U.S.C. j 924(e)(2)(B), wllich was addressed in Johnson, clid not exist with regard to the purely advisory sentencing guidelines. Accordingly, W ooten cannot establish any error, consthutional or otherwise, with regard to his career offender stat'us or his sentence.
To the extent that W ooten is argaing that, following the Fourth Circuit decision in United States v. Simmons, 649 F.3d 247 (4th Cir. 2011), his prior North Carolina dtnlg convicdon no longet qualihes as a predicate offense because it is not a felony offense punishable by a year or m ore, this argum ent is unaw iling. W ooten was sentenced to 35 to 42 months for that conviction, a tezm in excess of one year. PSR !J 25, ECF No. 44. M oreover, even if W ooten had predicates that had been used to suppott llis career offender stat'us that were later zeclassihed as nûsdem eanors, he would not be entitled to relief. U nited States v. Foote, 784 F.3d 931, 943 (4th Cir. 2015) (holding that a career offender designation, *3 later nullihed by Simm ons, is not cognizable on collateral review because although classificaéon as a careez offender under the gaidelines affects the sentence imposed such a designation does not Tfaffect the lawfulness of the sentence itself- then ot now '' as long as the sentence imposed does not exceed the stataztory maximum).
In addition, W ooten zaises two other claim s; he asserts that his counsel pzovided ineffective assistance by coezcing him to plead glzilty without explaining the consequences of doing so and that he should not be classified as a career 6ffender under the doctrine of nunc pzo taznc. W ooten has waived his right to bring such cllim s, as his plea agreem ent included a collatetal review waiver, wlaich is binding as his gull' ty plea was knowingly and voluntarily made. United States v. Lemastet, 403 F.3d 216, 220 (4th Cir. 2005). These claims also fail on the merits. W ooten's plea apeem ent noted that he had reviewed every part of the' agreem ent with cotmsel and that he had not been coerced into pleading gtlilty. Plea Agree. at 1 1-12, ECF No. 36. M oreover a nunc pro ttmc order m ay be used to con'ect mistakes and omissions in the record but not to change decisions in earlier cases, and therefore, is inapplicable in this case. Glyzme v. W ilmed Healthcare, 699 F.3d 380, 383-84 (4th Cir. 2012).
Therefore, W ooten's has not shown that he is eligible for relief tmder j 2255 following Johnson and his petition m ust be dism issed as untimely. See 28 U.S.C. j 2255(9.
IV . For the reasons stated, I grant the govem m ent's m otion to dismiss and dism iss the m otion to vacate, set aside, or correct sentence as untim ely. Based upon my fnding that W ooten has not made the iequisite substantial showing of a denial of a constitutional right as required by 28 *4 U.S.C. j 2253(X , a certifkate of appealability is denied. lU . day of px Oc% Gef-
ENTER: This 2017. %
SE IOR ITED STA TES D ISTRICT JU D GE