United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION  TO VACATE, SET ASIDE, OR CORRECT SENTENCE FILED
PURSUANT TO 28 U.S.C. § 2255 AND DENYING DEFENDANT'S
MOTION  FOR RELIEF UNDER THE INTERESTS OF
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT are the Motion  to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody and the
Motion  for Relief under the Interests of Justice, filed
pursuant to 28 U.S.C. § 2255 by Defendant Nikia Danyella
Burts (“Burts” or “Defendant”).
Defendant seeks to set aside his June 5, 2013, Judgment of
Conviction  for conspiracy to possess with intent to
distribute cocaine hydrochloride in violation of 21 U.S.C.
§ 846 on grounds that his sentencing enhancement as a
career offender was improper. Having considered the issues
presented, the record, and relevant legal authority, the
Court is of the opinion that Burts is not entitled to relief
and that the Motions ,  should be denied without an
United States of America (“the Government”) filed
a Criminal Complaint  on November 29, 2012, alleging that
Defendant and two co-defendants violated 21 U.S.C. § 846
by conspiring to possess with intent to distribute a
controlled substance, specifically more than 500 grams but
less than 5 kilograms of cocaine hydrochloride. Compl.  at
1. On December 12, 2012, a Grand Jury returned an Indictment
 charging Defendant with two criminal counts: (1)
conspiracy to possess with intent to distribute more than 500
grams of cocaine hydrochloride, as prohibited by 21 U.S.C.
§ 846; and (2) attempt to possess with intent to
distribute more than 500 grams of cocaine hydrochloride, as
prohibited by 21 U.S.C. § 846. Indictment  at 1.
ultimately entered into a written Plea Agreement  with
the Government and pleaded guilty to Count One of the
Indictment  on February 20, 2013. Minute Entry Feb. 20,
2013. Pursuant to the Plea Agreement , Defendant
expressly waived “the right to contest the conviction
and sentence or the manner in which the sentence was imposed
in any post-conviction proceeding, including but not limited
to a motion brought under Title 28, United States Code,
section 2255.” Plea Agreement  at 4-5.
to sentencing, the United States Probation Office prepared a
Presentence Investigation Report (“PSR”) as to
Burts. Applying the United States Sentencing Commission 2012
Guidelines Manual (“Guidelines”) §
2D1.1(c)(4), the PSR calculated Burts' base offense level
as 32. PSR  at 11. The PSR recommended that Burts'
sentence was subject to enhancement as a career offender
pursuant to § 4B1.1, which provides that
[a] defendant is a career offender if (1) the defendant was
at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). § 4B1.2 defines
“controlled substance offense” as
an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.
U.S.S.G. § 4B1.2.
concluded that Burts met the criteria to be classified as a
career offender under § 4B1.1(a) of the Guidelines. PSR
 at 10. § 4B1.1(a)(1) and (2) were satisfied because
Burts was over 18 years old at the time he committed the
instant offense of conviction, which was a felony that
qualified as a controlled substance offense. Id.
determined that § 4B1.1(a)(3) was also satisfied because
Burts had two prior felony convictions that qualified as
controlled substance offenses. Id. Burts previously
pleaded guilty in this Court and was sentenced on June 14,
2004, for conspiracy to possess with intent to distribute
cocaine in violation of 21 U.S.C. § 846. See
Criminal No. 1:03cr93-WJG-4. Burts was also convicted in 1999
of possession with intent to deliver between 4 and 200 grams
of cocaine, a felony of the first degree, in Harris County,
Texas. See Harris Cty., Tex., Cause #
817, 611; Tex. Health & Safety Code Ann. § 481.112
(hereafter referred to as “§ 481.112”).
Guidelines instruct that the base offense level for a career
offender, as set forth in a table in subsection §
4B1.1(b), shall apply instead if that offense level is
greater than the otherwise applicable base offense level.
U.S.S.G. §4B1.1(b). The base offense level for a career
offender pursuant to § 4B1.1(b) was 34 and was applied
to Burts because it was greater than the otherwise applicable
offense level of 32. PSR  at 9-10. After a three-level
adjustment for acceptance of responsibility, Burts' total
offense level was 31. Id. at 11.
criminal convictions resulted in a criminal history score of
12, which placed him in a criminal history category of V.
Id. at 14. However, because Burts qualified for
career offender status, his criminal history category was
automatically elevated to VI, as mandated by §4B1.1(b).
Id. The PSR thus recommended an imprisonment range
under the Guidelines between 188 months and 235 months based
upon an offense level of 31 and a criminal history category
of VI. Id. at 18. Burts submitted no objections to
5, 2013, the Court sentenced Burts to 170 months imprisonment
as to Count One and dismissed Count Two of the Indictment
 on the Government's Motion. Minute Entry June 5,
2013. The Court also sentenced Burts to four years of
supervised release, a $5, 000.00 fine, and a $100.00 special
assessment. J.  at 3, 5. Neither Defendant nor
his counsel filed an appeal of the Judgment of Conviction
 within the time afforded by the Federal Rules of
Appellate Procedure. See Mot.  at 2.
Motions ,  in Criminal No.
pro se, Defendant filed the instant Motion  to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
pursuant to 28 U.S.C. § 2255 on March 16, 2017. On the
same day, Burts also filed a separate Motion  to
“be construed as the motion for relief under the
interests of justice.” Mot.  at 1. Although the
Motion  appears to be titled “Motion to construe
petition as 2255 (f) (4) or Under the All writs act or Motion
pursuant to 28 USC 2255 (f) (3), ” it is not in the
standard form required by Rule 2 of the Rules Governing
Section 2255 Proceedings for the United States District
Courts (“Section 2255 Rules”).
asserts that he is bringing both Motions ,  pursuant
to § 2255(f)(3) or, in the alternative, §
2255(f)(4), and both petitions set forth the same grounds for
relief. See Mot.  at 1; Mot.  at 1.
Furthermore, Burts' § 2255 Motion  instructs the
Court to “see memorandum of law, ” although no
separate memorandum was filed. Mot.  at 4, 5. The Court
construes the Motion ...