United States District Court, N.D. Florida, Panama City Division
ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
PETITIONER'S MOTION UNDER 28 U.S.C. § 2255, AND
DENYING APPOINTMENT OF COUNSEL
E. Walker United States District Judge.
matter is before the Court on ECF No. 176, in which the
Magistrate Judge recommends that Petitioner's Motion to
Vacate under 28 U.S.C. § 2255 be denied. Mr. Birko did
not file objections but filed a motion for appointment of
counsel, ECF No. 178. For the reasons which follow, the
Report and Recommendation is adopted and the motion for
appointment of counsel is denied.
§ 2255 motion, Petitioner raises a single claim: that
his sentence violates due process of law based on Johnson
v. United States, 135 S.Ct. 2551 (2015) and Mathis
v. United States, 136 S.Ct. 2243 (2016), because the
Career Offender provision of the Sentencing Guidelines should
not have applied to him. That is, he argues that his Florida
burglary conviction is not a qualifying predicate
“crime of violence” under Guidelines § 4B1.2
and thus he does not qualify as a career offender under the
Guidelines. This Court agrees that this argument has been
expressly foreclosed by Eleventh Circuit and Supreme Court
precedent in United States v. Matchett, 802 F.3d
1185, 1193-96 (11th Cir. 2015) and Beckles v. United
States, 137 S.Ct. 886, 897 (2016). Thus, the Magistrate
Judge correctly recommends that Petitioner's motion under
§ 2255 should be denied.
the government and Magistrate Judge also point out that, at
the time of sentencing, Petitioner had other arguments that
the Career Offender provision should not have applied to
Petitioner. First, this Court agrees that none of the three
burglary convictions which Petitioner sustained on March 26,
2008, ¶¶ 45-47 in the Presentence Report, ECF No.
167, should have qualified as predicate offenses under the
Career Offender provision because Petitioner committed the
instant offense in August of 2007, seven months before he
sustained those burglary convictions. Second, this Court
agrees that the conviction he sustained on April 15, 2002,
for possession of un-prescribed Xanax does not qualify as a
“controlled substance offense” under the Career
Offender provision because that provision requires an element
of actual or intended “manufacture, import, export,
distribution, or dispensing.” Mere possession is not
enough. Sentencing Guidelines § 4B1.2(b).
for Petitioner, however, the Magistrate Judge is correct in
recommending that these arguments cannot provide relief for
Petitioner. First, this Court agrees that Petitioner should
have brought this claim on direct appeal or as an ineffective
assistance of counsel claim in his § 2255 motion. Also,
because these arguments were available to Petitioner at the
time of sentencing, he should have brought them within the
one-year time limit of 28 U.S.C. § 2255(f), even if he
chose to couch them in terms of an ineffective assistance of
counsel claim. He did not. Thus, these arguments would be
this Court agrees with the Magistrate Judge that Petitioner
cannot show either prejudice from these errors or a
fundamental miscarriage of justice because of them.
Petitioner, then 28 years old, faced a mandatory sentence of
life imprisonment but received a substantially reduced
sentence of 15 years due to the filing of a substantial
assistance motion by the government. A white male born in
1979 has a life expectancy of approximately 75 to 76 years,
so Petitioner's 15-year sentence can be viewed as a
reduction of 33 years from his potential sentence. A motion
under 18 U.S.C. § 3553(e) and Guidelines § 5K1.1
permits the Court to depart below the statutory mandatory
minimum and Guidelines range and frees the Court to impose
the appropriate sentence taking into account the factors
listed in 18 U.S.C. § 3553 and Guidelines §
5K1.1(a) and all of the circumstances of the offense, the
offender's criminal history and his level of cooperation.
In light of such a substantial reduction by the sentencing
judge, it would be pure speculation to argue that the judge
would have departed even further had the Career Offender
provision not been in play.
Court also finds that the government and the Magistrate Judge
made these arguments on behalf of Petitioner as fully as
appointed counsel would. Thus, appointment of counsel would
do little to advance this case or Petitioner's cause.
Accordingly, IT IS ORDERED:
Report and Recommendation of the Magistrate Judge, ECF No.
176, is adopted and incorporated herein.
Motion for Appointment of Counsel at ECF No. 178 is DENIED.
Motion to Vacate at ECF No. 165 is DENIED.
Clerk is directed to enter a judgment stating as follows:
“The Motion under 28 U.S.C. § 2255 to Vacate at
ECF No. 165 is DENIED. A certificate of appealability is
Clerk is directed to close the file.