United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge.
matter comes before the Court for consideration of the
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 filed by Petitioner Randal Deon
Best. For the reasons stated below, the petition is denied.
Factual and Procedural History
was charged with and pled guilty to charges of carjacking
(Count 3), using a firearm during and in relation to a crime
of violence (Count 4), and being a felon in possession of a
firearm and ammunition (Count 5). After granting the
Government's motion for a downward departure pursuant to
USSG § 5K1.1, the Court sentenced him to a total of 192
months incarceration, consisting of 108 months on Counts 3
and 5, and 84 months consecutive on Count 4. ECF Nos. 74, 76.
Petitioner was classified as an armed career criminal under
the Armed Career Criminal Act (ACCA), which imposes a
mandatory minimum fifteen-year sentence on a felon who
possesses a firearm and who has three or more prior
convictions for committing certain drug crimes or
“violent felon[ies].” 18 U.S.C. §
924(e)(1). He was classified as an armed career
criminal based on his seven prior convictions for North
Carolina Breaking or Entering (NC B&E). See PSR
¶¶ 50, 56 (two counts), 57 (four counts).
Petitioner's memorandum in support of his § 2255
petition, he asserts that, in light of Johnson v. United
States, 135 S.Ct. 2551 (2015) and other cases, he no
longer has the requisite No. of ACCA predicate convictions
and he is therefore entitled to a resentencing without the
ACCA enhancement. ECF No. 176-1 at 1.
28 U.S.C. § 2255
2255 provides that a prisoner in custody under sentence of a
federal court may file a petition in the court that imposed
the sentence to vacate, set aside, or correct the sentence. A
petitioner is entitled to relief under § 2255 if he
proves by a preponderance of the evidence one of the
following: (1) that the sentence was imposed in violation of
the Constitution or laws of the United States; (2) that the
court was without jurisdiction to impose such sentence; (3)
that the sentence was in excess of the maximum authorized by
law; or (4) that the sentence is otherwise subject to
collateral attack. See 28 U.S.C. § 2255(a);
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
1958) (per curiam).
deciding a § 2255 petition, a court need not hold a
hearing if “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). The Court has
thoroughly reviewed the motions, files, and records in this
case, liberally construing Petitioner's filings, and
finds that no hearing is necessary.
Circuit precedent forecloses Petitioner's argument that
he no longer has the requisite convictions to be an armed
United States v. Mungro, the Fourth Circuit
concluded that the NC B&E statute “sweeps no more
broadly than the generic elements of burglary, ” and
“therefore qualifies as an ACCA predicate
offense.” 754 F.3d 267, 272 (4th Cir. 2014). That would
seem to end the matter, but Petitioner says that
Mungro-decided prior to the Supreme Court's
decisions in Johnson and Mathis v. United
States, 136 S.Ct. 2243 (2016)-does not foreclose his
argument. Specifically, he points out that Mungro
did not address NC B&E's “building”
element, instead focusing on the “entry” element,
and he argues that the “building” element of the
statute is categorically broader than the
“building” element of generic burglary.
See ECF No. 176-1.
precise argument, however, has now been rejected by the
Fourth Circuit at least twice in the past several months. The
defendants in United States v. Street, 756 Fed.Appx.
310 (4th Cir. 2019) and United States v. Atkinson,
F. App'x, 2019 WL 181455 (4th Cir. Jan. 14, 2019) were
both convicted of being felons in possession of a firearm and
were both classified as armed career criminals based on their
prior NC B&E convictions. They argued-as Petitioner does
here-that Mungro did not apply because it only
addressed the “entry” element of burglary, not
the “building” element, and that NC B&E's
“building” element is broader than generic
burglary's “building” element. See
Street, 756 Fed.Appx. at 311; Atkinson, 2019 WL
181455, at *1. In both cases, the Fourth Circuit explicitly
and definitively rejected that argument. Street, 756
Fed.Appx. at 311 (“[W]e reject this argument and hold
that North Carolina breaking or entering's
‘building' element sweeps no broader than generic
burglary's ‘building' element.”);
Atkinson, 2019 WL 181455, at *1 (“We reject
this argument and hold that North Carolina Breaking and
Entering's ‘building' element sweeps no broader
than generic burglary's ‘building' element.
Accordingly, we find that Atkinson was properly treated as an
armed career criminal.”).
light of Mungro, Street, and
Atkinson, the Court concludes that Petitioner still
has the requisite No. of ACCA predicate convictions and is
therefore not entitled to habeas relief.