Brown v. United States

• Decision Date: 03 May 2022
• Docket Number: 7:08-CR-150-D,7:21-CV-179-D
• Parties: WALTER JAMES BROWN, II, Petitioner, v. UNITED STATES OF AMERICA, Respondent
• Court: U.S. District Court — Eastern District of North Carolina

WALTER JAMES BROWN, II, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Nos. 7:08-CR-150-D, 7:21-CV-179-D

United States District Court, E.D. North Carolina, Southern Division

May 3, 2022

ORDER

JAMES C. DEVER III UNITED STATES DISTRICT JUDGE

On October 18, 2021, Brown moved pro se under 28 U.S.C § 2255 to vacate, set aside, or correct his 240-month sentence [D.E. 91]. On October 25, 2021, Brown filed a supplement to his motion to correct his sentence [D.E. 95]. The next day, Brown filed a petition for a writ of mandamus [D.E. 96]. On November 29, 2021, the government moved to dismiss Brown's section 2255 motion for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) [D.E 98] and filed a memorandum in support [D.E. 99]. The same day, Brown moved to sanction the United States for allegedly filing its motion to dismiss too late [D.E. 101]. On November 30, 2021, the court notified Brown of the motion to dismiss, the consequences of failing to respond, and the response deadline [D.E. 100]. See Roseboro v Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). On December 9, 2021, Brown responded in opposition to the government's motion to dismiss [D.E. 102]. On January 28, 2022, Brown supplemented his section 2255 motion and requested a 60-month sentence reduction under U.S.S.G. § 5K1.1 [D.E. 103]. On April 25, 2022, Brown again applied for a writ of mandamus [D.E. 107], As explained below, the court grants the government's motion to dismiss, dismisses Brown's section2255 motion and its supplements, denies Brown's motion for sanctions, and denies a certificate of appealability.^[1]

I.

On February 23, 2009, pursuant to a written plea agreement, Brown pleaded guilty to possession with the intent to distribute five grams or more of cocaine base (crack). See [D.E. 12, 18];Plea Agr. [D.E. 19]. On August 4, 2009, the court held Brown's sentencing hearing. See [D.E. 30, 31]. At the hearing, the court adopted the facts set forth in the Presentence Investigation Report (“PSR”). See Fed. R. Crim. P. 32(i)(3)(A)-(B); Sentencing Tr. [D.E. 42] 4; PSR [D.E. 49]. The court calculated Brown's total offense level to be 38, his criminal history category to be VI, and his advisory guideline range to be 360 to 480 months' imprisonment. See Sentencing Tr. at 5. After granting the government's downward departure motion and considering the arguments of counsel and all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Brown to 300 months' imprisonment. See id. at 14-20; [D.E. 31]. Brown did not appeal.

On December 28, 2018, the court granted Brown's motion for a sentence reductio nunder 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10, and Amendment 782 and reduced his sentence to 262 months' imprisonment. See [D.E. 54], In doing so, the court explained at length why it declined to reduce Brown's sentence to 218 months as Brown had requested. See Id. at 2-3. In particular, the court noted that Brown is “a violent recidivist” who engaged in serious criminal conduct and that “[further reducing Brown's sentence... would threaten public safety.” Id.

On August 12, 2019, Brown moved pro se for a sentence reduction under section 404 of the First Step Act. See [D.E. 56]. On January 16, 2020, Brown, through counsel, supplemented his motion for a sentence reduction. See [D.E. 59]. On January 30, 2020, the government responded. See [D.E. 60]. On February 5, 2020, Brown replied. See [D.E. 63]. On May 4, 2020, Brown supplemented his motion for a sentence reduction. See [D.E. 67]. On July 31, 2020, the court denied Brown's motion for a sentence a reduction. See [D.E. 71]. Brown appealed. See [D.E. 72]. While Brown's appeal was pending, the Fourth Circuit decided United States v. Collington, 995 F.3d 347 (4th Cir. 2021). In light of Collington, the Fourth Circuit reversed this court's decision and remanded for further consideration. See United States v. Brown, 855 Fed.Appx. 897 (4th Cir. 2021) (per curiam) (unpublished). On October 1, 2021, the court reduced Brown's sentence to 240 months' imprisonment pursuant to Collington and did not alter Brown's five-year term of supervised release. See [D.E. 87]; see also United States v. Perez, 22 F.4th 430, 432, 436-38 (4th Cir. 2022). The court declined to reduce Brown's sentence any further “[i]n light of Brown's serious criminal conduct, criminal record, poor performance on supervision, the need to promote respect for the law, and the need to incapacitate Brown.” [D.E. 87] 5. Brown appealed and then moved to dismiss his appeal, which the Fourth Circuit granted. See [D.E. 88, 103-1, 104, 105].

II.

In his section 2255 motion and its supplements, Brown challenges the court's October 1, 2021 order reducing his sentence to 240 months, arguing the court did not properly take into account the substantial assistance for which the court gave Brown credit under U.S.S.G. § 5K1.1 at his original sentencing. See [D.E. 91]. Specifically, Brown argues that when the court reduced his sentence to 240 months under the First Step Act, the court had to give Brown 60 months' credit for substantial assistance, as the court did at Brown's original sentencing hearing. See id. at 4; [D.E. 95] 7-10; [D.E. 103] 2-3. According to Brown, this means the court had to reduce his sentence to 180 months' imprisonment because 240 months is the statutory maximum. See [D.E. 91] 4; [D.E. 95] 7-10; [D.E. 103] 2-3. The government moves to dismiss for failure to state a claim under Rule 12(b)(6). See [D.E. 98, 99].

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for “failure to state a claim upon which relief can be granted” tests a complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp, v. Twombly, 550 U.S. 544, 555-63, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), affd, 566 U.S. 30 (2012); Giarratano v. Johnson. 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions. See, e.g., Iqbal, 556 U.S. at 678. Similarly, a court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment See, e.g., Fed. R, Evid. 201(d); Tellabs, Inc, v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section 2255 motion, the court is not limited to the motion itself. The court may consider “the files and records of the case.” 28 U.S.C. § 2255(b); see United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). Likewise, a court may rely on its own familiarity with the case. See, e.g., Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977); United States v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013).

Section 2255 is not the proper mechanism for Brown to challenge the court's resolution of his First Step Act motion. Section 404 of the First Step Act allows a court to modify a defendant's already-existing sentence in certain circumstances. Such a modification falls within 18 U.S.C. § 3582(c)(1)(B), which allows a court to “modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B); see United States v. Wirsing, 943 F.3d 175, 184 (4th Cir. 2019). Although the court must undertake “a robust resentencing analysis” when it resolves a First Step Act motion, the analysis focuses on whether to modify an existing sentence; it is “not a plenary resentencing.” Collington., 995 F.3d at 353-58; see United States v. Lancaster, 997 F.3d 171, 174-75 (4th Cir. 2021). Moreover, the First Step Act does not require a court to modify a defendant's sentence so long as the existing sentence is still within the now-applicable statutory maximum. See First Step Act (“First Step Act”), Pub. L. No. 115-391, § 404(c), 132 Stat. 5194, 5222 (2018); Collington, 995 F.3d at 357. Thus, a challenge to the court's resolution of a motion under section 404 of the First Step Act is not a collateral attack on a conviction or sentence but is a challenge to the court's decision concerning whether and how to modify an existing sentence for a valid conviction.

Additionally in a motion for relief under section 404 of the First Step Act, similar to a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), a defendant has the opportunity to present arguments to facilitate the court's robust sentencing analysis and “to persuade the district court to modify his sentence.” United States v. Woodson, 433 Fed.Appx. 191, 193 (4th Cir. 2011) (per curiam) (unpublished). If, after presenting those arguments to the court, a defendant is dissatisfied with the court's ruling, “the defendant is obligated to appeal an unsatisfactory result rather than ask the district court to reconsider its denial.” Id. (discussing motions to reconsider the denial of a sentence reduction under section 3582(c)(2)); see United States v. Goodwyn, 596 F.3d 233, 235-36 (4th Cir. 2010). Because defendants may directly appeal the court's decision, section 2255 is not an appropriate device by which to challenge a court's resolution of a motion for a sentence reduction under section 404 of the First Step Act. See United States v. Frady, 456 U.S. 152, 165 (1982) (“[A] collateral challenge may not do service for an appeal.”); see, e.g., United States v. Ancrum, 5:02-CR-30020, 2021 WL 2483145, at *2-3 (W.D. Va. June 17,...