Brown v. United States

JAMAL BROWN, Movant, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 16-CIV-22323-SEITZ

CASE NO. 02-CR-20938-SEITZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

August 2, 2016

MAGISTRATE JUDGE P.A. WHITE

REPORT OF THE MAGISTRATE JUDGE

Introduction

The movant has filed a motion to vacate pursuant to 28 U.S.C. §2255, attacking his conviction and sentence entered in Case No. 02-Cr-20938-Seitz.

This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2255 Cases in the United States District Courts. The Court has reviewed the motion [CV-DE#1], and all pertinent portions of the underlying criminal file. No order to show cause has been issued because, on the face of the motion, it is evident the movant is entitled to no relief. See Rule 4(b), Rules Governing Section 2255 Proceedings.¹

Claims

In his motion, Movant claims that his Career Offender sentence under the Federal Sentencing Guidelines is unlawful in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015).

Procedural History

Movant has been in federal custody since December 17, 2002 [See CR-DE#39-40; PSI, p.2]. On September 10, 2003, Movant pleaded guilty to one count of conspiracy to distribute at least five kilograms of cocaine and at least 50 grams or more of a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1).

A PSI was prepared in anticipation of sentencing. The base offense level for this violation of § 841(a)(1) was 43 (as opposed to 38), because a victim was killed under circumstances that would constitute murder. (PSI, ¶34; Court's Statement of Reasons). Movant was also considered to be a Career Offender under the Federal Sentencing Guidelines, because he was at least 18 years old at the time of the instant offense, the instant offense is a felony controlled substance offense, and he has at least two prior felony convictions for either a crime of violence or a controlled substance offense. (Id. at ¶40). However, his offense level was not enhanced, because the base offense level for his offense was greater than that would be required based on his Career Offender status. (Id.). As the prior convictions qualifying Movant for the Career Offender designation under the Guidelines, the PSI listed Florida docket numbers F94015919C, F95018255, and F02027899. (Id.). These convictions were for the sale, purchase or delivery or cocaine, trafficking in cocaine, and selling, manufacturing, delivering and possessing with intent to distribute cannabis. (Id. at ¶¶47, 49, 52. Three points were deducted for timely acceptanceof responsibility, resulting in a total offense level of 40. (Id. at ¶41-42).

Movant also had a total of six criminal history points, resulting in a criminal history category of III. (PSI, ¶54). However, because Movant was considered a Career Offender, Movant's criminal history category was enhanced to a category VI. (Id.). Based on a total offense level of 40 and a criminal history category of VI, Movant's guideline sentencing range was 360 months' to life imprisonment. (Id. at ¶90).

On February 2, 2004, Movant appeared for sentencing, at which time the district court granted Movant a downward departure. (See CR-DE#404-05, 416). Specifically, the Court reduced Movant's offense level by five levels due to his extraordinary physical impairment, but noted that Movant became a quadriplegic in retaliation for a death that a co-conspirator caused. (Court's Statement of Reasons, CR-DE#416). The Court thus applied a guideline range of 292-365 months (based on a total offense level of 35 after the five-level reduction for Movant's extraordinary physical impairment, and a criminal history category of VI), and sentenced Movant to a total term of 300 months' imprisonment. (CR-DE#405).

Movant appealed his conviction and sentence. The Eleventh Circuit remanded for re-sentencing consistent with Booker, but affirmed Movant's conviction, and rejected his other sentencing claims. (See CR-DE#492).

On remand, the district court sentenced Movant to 260 months imprisonment. (CR-DE#512). It appears that, without the Career Offender enhancement, Movant's guideline sentencing range would have been 210-262 months' imprisonment (based on a total offense level of 35 after the three point reduction for timely acceptance of responsibility and the five-level reduction for Movant'sextraordinary physical impairment, and a criminal history category of III.

Judgment was entered on December 15, 2005. (CR-E#512). Movant again appealed, this time unsuccessfully. (CR-DE#523). Movant sought no further review.

On June 13, 2016, pursuant to the "prison mailbox rule," Movant filed the instant motion pursuant to 28 U.S.C. § 2255.²

Standard of Review

Pursuant to 28 U.S.C. §2255, a prisoner in federal custody may move the court which imposed sentence to vacate, set aside or correct the sentence if it was imposed in violation of federal constitutional or statutory law, was imposed without proper jurisdiction, is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. §2255. If a court finds a claim under Section 2255 to be valid, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. To obtain this relief on collateral review, however, a habeas petitioner must "clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816(1982)(rejecting the plain error standard as not sufficiently deferential to a final judgment).

Under §2255, unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the court shall "grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. §2255; see also Smith v. Singletary, 170 F.3d 1051, 1053 (11^th Cir. 1999)("[a] habeas corpus petitioner is entitled to an evidentiary hearing on his claim 'if he alleges facts which, if proven, would entitle him to relief.'" )(internal citations and quotations omitted)). However, the movant in a §2255 proceeding must allege reasonably specific, non-conclusory facts that, if true, would entitle him to relief. Aron v. United States, 291 F.3d 708, 715, n. 6 (11^th Cir. 2002). Otherwise, no evidentiary hearing is warranted. Id, 291 F.3d at 714-715 (explaining that no evidentiary hearing is needed when claims are "affirmatively contradicted by the record" or "patently frivolous"); Holmes v. United States, 876 F.2d 1545, 1553 (11^th Cir. 1989) (noting that a hearing is not required on claims which are based upon unsupported generalizations or affirmatively contradicted by the record). Moreover, a court need not conduct an evidentiary hearing where the issues can be conclusively decided on the basis of the evidence already in the record, and where the petitioner's version of the facts have already been accepted as true. See, e.g., Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1070 (11^th Cir. 2011); Turner v. Crosby, 339 F.3d 1247, 1274-75 (11^th Cir. 2003); Smith, 170 F.3d at 1054; Schultz v. Wainwright, 701 F.2d 900, 901 (11^th Cir. 1983); Roberts v. Marshall, 627 F.3d 768, 773 (9^th Cir. 2010).

The ACCA and the Federal Sentencing Guidelines

Under the Armed Career Criminal Act of 1984 ("ACCA"), a defendant convicted of being a felon in possession of a firearmfaces a more severe punishment if he or she has three or more convictions for a "violent felony" or "serious drug offense," or both, committed on occasions different from one another. The ACCA defines "violent felony" any crime punishable by imprisonment exceeding one year that:

(I) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The words "or otherwise involves conduct that presents a serious potential risk of physical injury to another" have come to be known as the Act's residual clause. Johnson v. United States, 135 S.Ct. 2551, 2555-56 (2015). As everyone by now is well aware, in Johnson, the Supreme Court held that the ACCA's residual clause was unconstitutionally vague, and that imposing an enhanced sentence pursuant to that clause thus violates the Constitution's guarantee of due process. 135 S.Ct. at 2563.

Under the Federal Sentencing Guidelines, a defendant is considered a Career Offender if he or she is at least 18 years old at the time of the offense, the offense is for either a "crime or violence" or a "controlled substance offense," and the defendant has at least two felony convictions of either a "crime of violence" or a "controlled substance offense." U.S.S.G. § 4B1.B1. The definition of "crime of violence" includes "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a). Thus, to the extent that the Guidelines provide define "crime of violence" to include anyoffense that "otherwise involves conduct that presents a serious potential risk of physical injury to another," the Guidelines also contain their own "residual clause." See United States v. Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015).

Here, it is undisputed that Movant was not subjected to an enhanced penalty as an Armed Career Criminal under the ACCA. Rather, Movant was subjected to an enhanced criminal history category as a Career Offender pursuant to Federal Sentencing...