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United States v. Guider

United States District Court, D. South Carolina, Columbia Division

August 9, 2016

United States of America,
v.
Derrick Gibson, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Defendant, 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. 168.[1]

         I. Background

         On 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.

         On 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.

         On 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.

         II. 18 U.S.C. § 924(c)

         Title 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).

         A “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, or
(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).

         III. ...


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