United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
proceeding pro se, seeks relief in this court
pursuant to 28 U.S.C. § 2255. Defendant filed a motion
for appointment of counsel and to compel sentence reduction
on June 15, 2016. ECF No. 163. The court notified Defendant
of its intent to construe the motion as a § 2255 motion
and directed the Government to respond. ECF No. 164. The
Government filed a response in opposition and memorandum in
support of a motion to dismiss. ECF No. 166. Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the court advised Defendant of the response procedure and the
consequences if he failed to respond. ECF No. 167. On August
3 2016, Defendant filed a reply, again requesting counsel to
assist with “pursuing his rights and responsibilities
under the Johnson v. United States.” [sic]. ECF No.
August 19, 2009, Defendant was charged in an indictment in
this District with three counts: conspiracy to possess with
intent to distribute cocaine and cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and
841(b)(1)(B); possession with intent to distribute cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 841(b)(1)(C); and knowingly using and
carrying a firearm during and in relation to, and possessing
the firearm in furtherance of, a drug trafficking crime in
violation of 18 U.S.C. § 924(c). ECF No. 2.
January 6, 2011, Defendant entered into a written plea
agreement to plead to the lesser included drug conspiracy
charged in Count 1, conspiracy to possess with intent to
distribute cocaine and cocaine base (500 grams or more), and
count 5, the § 924(c) charge. ECF No. 76. As a part of
the plea agreement, Defendant waived his direct appeal rights
and his right to file a motion for relief under § 2255
except as to claims of ineffective assistance of counsel
and/or prosecutorial misconduct. On January 7, 2011,
Defendant appeared before this court and pled guilty as
above. ECF No. 80.
April 18, 2011, Defendant appeared for sentencing. The court
sentenced Defendant to a total term of 144 months, consisting
of 84 months on count 1 (the distribution count) and 60
months consecutive as to count 5 (the 924(c)). ECF No. 97.
Defendant did not file a direct appeal. On September 5, 2014,
an Amended Judgment was entered following a Rule 35 motion,
and reduced Defendant’s sentence to a total of 94
months. ECF No. 152.
18 U.S.C. § 924(c)
18 U.S.C. § 924(c) provides that a defendant shall be
subject to a consecutive sentence if he or she, “during
and in relation to any crime of violence or drug trafficking
crime. . . for which the person may be prosecuted in a court
of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm. . .
.” 18 U.S.C. 924(c).
“drug trafficking crime” for purposes of §
924(c) means “any felony punishable under the
Controlled Substances Act (21 U.S.C. §§ 801 et
seq.), the Controlled Substances Import and Export Act (21
U.S.C. §§ 951 et seq.), or chapter 705 of title
46.” 18 U.S.C. § 924(c)(2). For purposes of this
statue, a “violent felony” is defined as:
an offense that is a felony and -
(A) has an element the use, attempted use, or threatened use
of physical force against the person or property of another,
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3).