Wagner v. United States

• Decision Date: 24 August 2012
• Docket Number: No. 2:04-cr-0853,2:04-cr-0853
• Parties: RASHARD KIMAKO WAGNER, Petitioner, v. UNITED STATES OF AMERICA.
• Court: U.S. District Court — District of South Carolina

RASHARD KIMAKO WAGNER, Petitioner,
v.
UNITED STATES OF AMERICA.

No. 2:04-cr-0853

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

Dated: August 24, 2012

ORDER

This matter is before the court on petitioner Rashard Kimako Wagner's motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. The government filed a motion to dismiss, or in the alternative, a motion for summary judgment. For the reasons set forth below, petitioner's motion is denied, and the government's motion for summary judgment is granted.

I. BACKGROUND

Petitioner pled guilty on December 28, 2004 to: (1) possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C); (2) using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). The court found that petitioner's prior conviction in 1998 for possession of marijuana with intent to distribute (PWID) contributed to his qualification for an enhanced sentence under 21 U.S.C. § 851 and U.S.S.G. § 4B1.1 as a "career offender." The court sentenced petitioner to a total of 262 months imprisonment based on the career

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offender enhancement on April 18, 2005. Petitioner appealed his sentence, and the Fourth Circuit affirmed on November 15, 2005.

On December 27, 2011, petitioner filed this motion arguing that there has been a subsequent change in law which affected his substantive rights. The government responded to petitioner's motion on February 10, 2012, and moved to dismiss the claim, or in the alternative, for summary judgment. Petitioner filed a response on March 15, 2012. According to petitioner, United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (Simmons III), and Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), have prompted a retroactive change in law that invalidates the court's use of petitioner's prior PWID conviction to enhance his sentence.

II. STANDARDS

Petitioner appears pro se in this case. Federal district courts are charged with liberally construing petitions filed by pro se litigants to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se petitions are therefore held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

Summary judgment shall be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is

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such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

III. DISCUSSION

Petitioner proceeds under 28 U.S.C. § 2255, which provides, in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Section 4B1.1(a) of the United States Sentencing Guidelines contains three requirements for determining that a "career offender" enhancement should be...