NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

BRUCE WILCOX, : CIVIL ACTION NO. 11-1247 (MLC)

:

Petitioner, : MEMORANDUM OPINION

:

v. :

:

UNITED STATES OF AMERICA, :

:

Respondent. :

 :

COOPER, District Judge

Bruce Wilcox (“Petitioner”) moves to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255. The underlying

criminal case in this Court was United States v. Bruce Wilcox,

Crim. No. 07-525-002 (MLC). For the reasons set forth herein,

issued without oral argument pursuant to Federal Rule of Civil

Procedure 78, the Court will deny the motion.1

 The records filed herein are the following numbered 1

docket entries (“dkt.”): Original § 2255 motion (dkt. 1); Miller

notice (dkt. 2); Response to Miller notice (dkt. 3); Answer (dkt.

11); and Petitioner’s Reply Brief (dkt. 12). The relevant

records filed in the underlying criminal case (Crim. No. 07-525-

002) include Indictment (dkt. 1); plea agreement (dkt. 34);

Judgment of Conviction filed 11-12-08 (dkt. 43); transcript of

sentencing hearing held 10-1-08 (“Sentencing Transcript”) (dkt.

44); transcript of plea hearing held 3-6-08 (dkt. 47); Judgment

of Affirmance (dkt. 80); and Opinion of the Court of Appeals

(“Appeal Opinion”) (dkt. 82-1). The chambers file in the

underlying criminal case also includes the Presentence

Investigation Report (“PSR”) dated 8-21-08; government sentencing

memorandum dated 8-28-08; and defense sentencing memorandum dated

9-24-08, with numerous supporting letters.

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I. BACKGROUND

Petitioner entered a plea of guilty on March 6, 2008, to one

count of possession with intent to distribute a quantity of a

mixture containing heroin, in violation of 18 U.S.C. §§ 841(a)(1)

and 841(b)(1)(B)(i). The guilty plea was based upon a December

14, 2006 drug transaction, during which Petitioner and his codefendant purchased approximately 120 bricks of heroin in New

York City and transported the heroin to New Jersey using the New

Jersey Transit System. Petitioner pled guilty to Count Two of

the indictment pursuant to a written plea agreement in which the

government agreed to dismiss the indictment’s conspiracy count. 

In his plea, he stipulated that the weight of the heroin was

296.03 grams. (Appeal Opinion at 3.)

The sentencing hearing was conducted on October 1, 2008. 

(Judgment of Conviction at 1.) The May 1, 2008 edition of the

United States Sentencing Commission Guidelines Manual (“USSG”)

was used in making the Guidelines calculations. (PSR ¶ 41.) 

Based upon the stipulated quantity of heroin, the base offense

level would have been level 26. USSG § 2D1.1(c)(7). However,

based upon Petitioner’s criminal history he was found to qualify

for career offender status within the meaning of USSG § 4B1.1. 

(PSR ¶ 48.) That finding resulted in an adjusted offense level 2

 Petitioner qualified for career offender status under 2

USSG § 4B1.1(a) because (1) he was at least 18 years old when he

committed the instant offense; (2) the instant offense was a

2

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of 34 under USSG § 4B1.1(b), which was adjusted to total offense

level 31 after reduction for acceptance of responsibility under

USSG § 3E1.1. (Id. ¶¶ 48-52.) That same finding of career

offender status resulted in Criminal History Category VI,

although the case would have been within that criminal history

category anyway because Petitioner had 16 criminal history points

under the Guidelines. (Id. ¶¶ 57-70.) The resulting advisory

Guideline range for imprisonment was 188-235 months, with a

statutory mandatory minimum of 5 years and statutory maximum of

40 years. (Id. ¶¶ 96-97; Sentencing Transcript at 4-7.) 

3

The sentencing hearing was conducted pursuant to 18 U.S.C. 

§ 3553(a), with the Federal Sentencing Guidelines being used as

controlled substance offense; and (3) he had at least two prior

felony convictions of controlled substance offenses. (PSR ¶ 48.) 

In fact, he had four predicate felony controlled substance

convictions in state courts: (1) conviction 1-11-99, Middlesex

County NJ Superior Court Ind. # 98-06-00905-I, for possession

with intent to distribute CDS; (2) conviction 6-29-01, Mercer

County NJ Superior Court Ind. # MER-000500537-I, for possession

with intent to distribute within a school zone; (3) conviction 6-

29-01, Mercer County Superior NJ Court Ind. # MER-010500274-A,

for distribution within 500 feet of public housing [the latter

offense was separated from the former offense by an intervening

arrest]; and (4) conviction 4-23-04, New York County NY Superior

Court, for criminal possession of a controlled substance. (PSR

¶¶ 58-67.) He also had a misdemeanor drug offense. (Id. ¶ 60.)

 Absent the Section 4B1.1(b) career offender provision, 3

Petitioner’s total offense level would have been 23 (base offense

level 26 less three levels for acceptance); his criminal history

category would still have been Category VI (based on 16 criminal

history points); and his advisory Guideline imprisonment range

would have been 92-115 months.

3

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advisory only pursuant to United States v. Booker, 543 U.S. 220

(2005). (Sentencing Transcript at 3.) This Court expressly

followed the three-step sentencing process described in United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006), and numerous

other post-Booker precedential opinions in the Third Circuit. 

(Id.)

We first made the Guidelines calculation at step one, as

summarized above, as to which neither party had any objections. 

(Id. at 3-7.) Next, at step two, this Court heard and ruled upon

defendant’s motion for downward departure. Defendant argued for

a downward departure based upon a combination of factors,

essentially referring to lack of guidance as a youth and family

ties and circumstances; and the government argued in opposition. 

We denied that motion, for reasons stated on the record, and

proceeded to step three of the sentencing hearing. (Id. at 7-

13.) At step three, the Court heard and considered the arguments

of counsel for both parties, as well as the statements made by

defendant himself. (Id. at 13-16.) 

Defense counsel specifically requested at step three that

the court impose a reasonable sentence “that may not be within

the guideline range,” referring to the substantial discretion of

the court to sentence with the five-to-forty-year statutory

range. (Id. at 14-15.) This was clearly an argument for a

downward variance, emphasizing both the social factors and the

4

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fact that defendant’s criminal history, while extensive, was nonviolent. (Id. at 14-16.) This Court understood that argument as

a request for a variance to a below-Guidelines sentence. The 4

government argued for a sentence within the advisory Guideline

range of 188 to 235 months. (Id. at 13-14.) The ruling of this

Court as to the specific sentence imposed, and the reasoning of

the Court in response to the arguments advanced by the respective

parties, was as follows:

I think Mr. Wilcox fully appreciates now the

seriousness of the federal sentence that he had

incurred by his continued drug activity in his own

community. It is clear that repeated involvement with

the law in the state court system simply served as a

revolving door for him to come back out and continue

his drug distribution activity.

There’s no suggestion that he himself was drug

addicted. That wouldn’t excuse of course his conduct. 

This was his livelihood, his only livelihood. He has

no employment history of a law abiding nature. His

family is intact and very functional. Although his

father accepts that he was dysfunctional at times in

the past, he’s now a minister and has written a very

sincere, I find, and respectful letter to the Court as

has his mother and his sister and himself and his small

daughter, nine years old. So this is a sad day to be

sure.

It’s true that he has not been apprehended or

charged with any weapons possession and there’s no

indication of violence in his background, but the world

that he inhabited is inherently prone to violence, and

certainly that heroin that he was instrumental in

distributing and other drugs perpetuates a climate of

crime in the community that raised him.

 The written plea agreement with Petitioner did not 4

contain any stipulation preventing him from arguing for a

departure at step two, or for a variance at step three. See

Crim. No. 07-525-002, dkt. 34 at 6.

5

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The Court has considered his entire personal

history, not just his criminal history, and we see that

he had some trouble adjusting in high school, but he

started out well in parochial school and he had the

support of his family to continue forward....

Again, he has never gained legitimate employment

for any period of time and his livelihood has always

been, it appears, on the streets dealing drugs. His

career offender status he would have even with only two

prior controlled dangerous substance distribution

offenses; he’s got four. And so he has a very heavy

career offender prior record.

We can appreciate his sincere remorse at this

time, but we must temper that with an awareness that

the remorse has come upon him since the time that he

committed the instant offense even while less than one

year released from his prior incarceration and while

still on probation and indeed reporting on the day of

this offense to his probation officer.

We have considered these mitigating factors as

well as these offense and relevant conduct factors, and

we will impose a sentence at the bottom of the

guideline range in this case, which is 188 months. 

This sentence will include five years of supervised

release....

....

The justification for the sentence I have just

articulated, and the statutory basis for the sentence

is obviously Section 3553(a), which requires the Court

to impose a sentence sufficient, but not greater than

necessary to support the sentencing objectives, bearing

in mind the guideline range as advisory only and also

seeking to promote the statutory factors of reflecting

the seriousness of the offense, promoting respect for

the law, providing just punishment, affording adequate

deterrence, protecting the public from further crimes

of the defendant and avoiding unwarranted sentence

disparities among defendants with similar crimes and

similar records.

(Id. at 16-19 (emphasis added).)

6

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The Judgment of Conviction was filed on November 12, 2008. 

See n.1 supra. Petitioner filed a timely notice of appeal, and

his court-appointed appellate counsel subsequently filed an

Anders motion discussing any issues of arguable merit. (Appeal

Opinion at 3-4.) In his Anders brief, counsel identified three

possible issues for appeal and explained why each would be

frivolous. Those were: (1) whether the plea hearing met the

requirements of Federal Rule of Criminal Procedure 11; (2)

whether the District Court complied with proper sentencing rules;

and (3) whether the judge erred in denying Petitioner’s motion

for a downward departure. (Id. at 4-5.) 

The Court of Appeals concluded that as to all three

potential grounds for appeal, they were devoid of arguable merit. 

(Id. at 5-7.) As to the sentencing issues, the Court of Appeals

concluded as follows: “Here, the District Court considered the

parties’ arguments and appropriately considered the 18 U.S.C. §

3553(a) factors.” (Id. at 7.) Thus, the Court of Appeals

granted the Anders motion and affirmed the District Court’s

judgment and sentence on March 29, 2010. (Id.)

This timely motion under 28 U.S.C. § 2255 (“Petition”) was

filed on March 7, 2011. (Dkt. 1.) The government filed an

Answer referring to supporting documentation in the record, and

Petitioner filed a Reply Brief. See n.1 supra.

7

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II. DISCUSSION

A. Statutory framework

Under 28 U.S.C. § 2255:

A prisoner in custody under sentence of a [federal]

court . . . 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, or that the court was without jurisdiction

to impose such sentence, or that the sentence was

in excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move

the court which imposed the sentence to vacate, set

aside or correct the sentence.

28 U.S.C. § 2255(a).

This Court has jurisdiction under 28 U.S.C. § 1331. 

Petitioner has the burden of establishing any claim asserted in

the motion. United States v. Abbott, 975 F.Supp. 703, 705 (E.D.

Pa. 1997).

Petitioner asserts four grounds for relief. Grounds One

through Three allege that he has currently pending, in the New

Jersey state courts, properly filed post-conviction motions

challenging three of his predicate convictions that provided the

basis for his career offender status here. As to those grounds, 5

he seeks to be resentenced de novo if and when those predicate

 Specifically, petitioner alleges in Ground One that post- 5

conviction proceedings are pending in New Jersey state court on

his conviction in Mercer County case number 000500537-I [which

corresponds to PSR ¶¶ 62-63]; in Ground Two he makes the same

allegation as to Mercer County case number 010500274-A [which may

correspond to PSR ¶¶ 64-65]; and in Ground Three he makes the

same allegation as to Middlesex County case number 98-06-00905-I

[which corresponds to PSR ¶¶ 58-59]. (Petition, dkt. 1 at 6-15.) 

8

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convictions are vacated and he is no longer a career offender in

this case. (Dkt. 1 at 6-15.) 

Ground Four of the Petition alleges that at the time of

sentencing, this Court “mandatorily applied the Career Offender

Guideline range applicable in this case,” and that in light of

subsequent case law that action was error, such as to require

resentencing with a recognition that the career offender

classification is advisory only. (Id. at 16-18.) 

Upon review of the motion papers and the relevant materials

contained in the record of the underlying criminal case, this

Court finds that an evidentiary hearing is not required and the

matter should be adjudicated upon the papers. See Rules

Governing Section 2255 Proceedings for U.S. District Courts, Rule

8(a); United States v. McCoy, 410 F.3d 124, 131-35 (3d Cir.

2005). We conclude that as to Grounds One through Three, the

Petition should be denied without prejudice; and as to Ground

Four the Petition must be denied with prejudice. 

B. Discussion of Grounds One through Three

Petitioner seeks resentencing, in Grounds One through Three,

in the event that his specified New Jersey state convictions are

vacated as a result of his pending post-conviction proceedings in

state court. (Dkt. 1 at 5-13.) He frankly states that since

those post-conviction proceedings are not yet final, the related

issues here are not yet ripe. He merely seeks to preserve any

9

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rights to assert those issues at an appropriate time, and not to

be barred by the one-year statute of limitations in 28 U.S.C. §

2255. (Id.) 

The government responds that petitioner will be entitled to

a new one-year statute of limitations if any of his pending state

court challenges to underlying convictions are successful, citing

28 U.S.C. § 2255(f)(1-4). (Dkt. 11 at 4-6.) “[S]tate-court

vacation is a matter of fact for purposes of the limitation

rule.” Johnson v. United States, 544 U.S. 295, 302 (2005). “[A]

defendant who successfully attacked his state conviction in state

court” may “apply for reopening of any federal sentence enhanced

by the state sentences.” Id. at 303 (quoting Custis v. United

States, 511 U.S. 485, 497 (1994)). If a challenge to any

underlying conviction is successful in state court, “the

defendant may then apply for reopening of his federal sentence.” 

Daniels v. United States, 532 U.S. 374, 382 (2001) (emphasis

added). 

The government agrees that “[i]f Petitioner successfully

challenges his state convictions such that he can no longer be

deemed a career offender, then he may have a full year to file a

timely petition to vacate his federal sentence on those grounds.” 

(Dkt. 11 at 6.) Petitioner replies that he does not object to

“either an abatement of these issues, or a dismissal without

prejudice.” (Dkt. 12 at 1.) This Court will dismiss the

10

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Petition as to Grounds One, Two and Three without prejudice, for

these reasons. 

C. Discussion of Ground Four

Petitioner argues in Ground Four that “[a]t the time of

petitioner’s sentence, he was adjudicated to be a career

offender, under the then applicable legal interpretation that

Career Offender Guidelines (as applied to petitioner) were

mandatory. See: USSG § 4B1. After petitioner’s sentence was

imposed, but while petitioner was on direct appeal, it became

clear that Career Offender Classifications are, in fact, not

mandatory.” (Dkt. 1 at 16.) This contention is an apparent

reference to United States v. Corner, 589 F.3d 411 (7th Cir.

2010), decided en banc by the Court of Appeals for the Seventh

Circuit on March 17, 2010. (Id. at 18.) It will be recalled

that Petitioner’s direct appeal was decided on March 29, 2010. 

See Sec. I above. 

The government responds that this assertion is factually

incorrect because “[f]rom the transcript of Petitioner’s

sentencing hearing, it is clear that the Court treated the

Guidelines as advisory and properly considered them only as

another factor to be used in determining a reasonable sentence.” 

(Dkt. 11 at 7.) On this point we agree with the government,

based upon the record in the underlying criminal case. See

Section I supra. Clearly, this Court at sentencing followed the

11

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three-step procedure whereby we did make the undisputed Guideline

calculation at the first step, including the career offender

findings. Then at the third step we applied the sentencing

statute, 18 U.S.C. § 3553(a), expressly reiterating in the

Court’s stated justification for the sentence that it was imposed

“bearing in mind the guideline range as advisory only.” 

(Sentencing Transcript at 16-19.)

We have examined carefully the legal argument presented by

Petitioner in Ground Four of the Petition (dkt. 1 at 16-18), and

as elaborated in his Reply Brief (dkt. 12 at 1-2). That argument

refers to the gradual development of post-Booker case law in the

federal Courts of Appeal on the precise issue of whether USSG §

4B1.1, with its career offender provisions, is mandatory at

sentencing or whether the sentencing judge may grant a variance,

even if it is based upon a “policy disagreement” with § 4B1.1. 

This case law development has been summarized in detail by

the panel decision in United States v. Merced, 603 F.3d 203, 218-

222 (3d Cir. 2010) (assuming without deciding that district

courts may vary from a career offender Guidelines range based on

a policy disagreement, where parties did not dispute that would

be permissible under Booker and its progeny). See also id., 603

F.3d at 226-30 (Ambro, J., concurring and urging Third Circuit to

issue express ruling to that effect); United States v. Mathis,

404 Fed.Appx. 595, 598-99 (3d Cir. 2010) (granting Anders motion

12

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and affirming sentence where “nothing in the record suggests that

the District Court believed it could not vary” based on a policy

disagreement about career offender Guidelines). The legal debate

reflected in that case law has occurred entirely in other federal

Courts of Appeal, where for a time there seemed to be a circuit

split on the issue; however, the contrary view seemingly had

fallen out of favor by the time Corner was decided in the Seventh

Circuit in March, 2010. See Merced, 603 F.3d at 218-19. 

That case law history is perhaps of academic interest, but

it cannot control the result on this Petition. The simple fact

is that at no time since Booker was decided has the Third Circuit

taken the view that a variance from career offender Guidelines

was not permitted, or conversely that the career offender

Guidelines were mandatory. Id. Accordingly, this District Court

could not have been under any impression to that effect when it

sentenced Petitioner here in the Third Circuit in March 2008. 

Nor were we under any such impression or opinion at that time. 

“[D]ue process clearly guarantees all defendants the right

to be sentenced under an accurate understanding of the law.” 

United States v. Eakman, 378 F.3d 294, 302 (3d Cir. 2004), citing

United States v. Barnhart, 980 F.2d 219, 225 (3d Cir. 1992).

Here, as in Mathis, supra, there is simply nothing in the record

to suggest that this District Court believed it could not vary

based on a policy disagreement about career offender Guidelines,

13

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when it sentenced Petitioner in this case. To the contrary, as

we expressly stated at the sentencing hearing, we imposed his

sentence in full recognition that the Guidelines were “advisory

only” under our application of the 18 U.S.C. § 3553(a) factors. 

See Section I supra. Accordingly, we find that the record does

not support Petitioner’s contention that “the district court was

unaware that § 4B1 was advisory, and therefore applied the

sentencing range for career offender mandatorily.” 

If this Court had been inclined to grant a variance from the

career offender calculation in determining Petitioner’s sentence,

either on the basis of an “individualized determination” or a

“policy disagreement,” we would not have been constrained by any

then-existing Third Circuit precedent and we would have proceeded

under the dictates of Booker that the Guidelines (including the

career offender provisions thereof) were advisory only. Our

attention at that point would have turned to the procedural

requirements of analyzing and explaining such a potential

variance, see Merced, 603 F.3d at 219-22. 

This Court did consider whether to grant Petitioner a

variance on the full array of grounds advanced by his counsel,

including mitigating aspects of his individual criminal history. 

See Section I supra. If we had been so inclined we also would

not have hesitated to consider a variance based upon policy

disagreement with the career offender provisions. 

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We hold that Petitioner’s contention that his sentence was

imposed under an erroneous view that the career offender

provisions were mandatory is not supported by the record. 

Therefore we find no due process violation, and no legal

sentencing error, that would support relief under 28 U.S.C. §

2255 on Ground Four of the Petition.

III. CONCLUSION

This Court concludes that the issues presented in Grounds

One, Two and Three of the Petition are not ripe, because

Petitioner alleges that post-conviction challenges to certain

underlying state court convictions are currently pending and have

not reached final determination. Therefore, the Petition will be

dismissed without prejudice as to those issues. 

This Court finds that Petitioner has not met his burden to

establish his claim asserted in Ground Four of the Petition. 

Based upon our review of the record, we hold that petitioner was

not deprived of his Fifth Amendment right to due process, nor was

he sentenced under an error of law, as to the advisory nature of

the Guidelines including the career offender provisions of USSG §

4B1.1. Accordingly, the motion under 28 U.S.C. § 2255 to vacate,

set aside, or correct the sentence under Ground Four of the

Petition must be denied with prejudice. 

No certificate of appealability will issue pursuant to 28

U.S.C. § 2253(c). Cf. Fed.R.App.P. 22; Loc.App.R. 22.2. A

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certificate of appealability is issued “only if the applicant has

made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2); United States v. Cepero, 224

F.3d 256, 267-68 (3d Cir. 2000). For the reasons discussed

above, the Petition does not make such a showing here. 

The Court will issue an appropriate Order and Judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: October 20, 2011

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