United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE
moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and
challenges the validity of his convictions for one count of
distributing fifty grams or more of cocaine base, for which
offense he is imprisoned for 262 months. Marchman
mistakenly contends that, under recent Supreme Court
decisions, his career offender sentence is invalid.
Rules Governing Section 2255 Cases, requires both a
preliminary review of the motion to vacate and a summary
dismissal "[i]f it plainly appears from the face of the
motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief.
. . ." Accord Wright v. United States, 624 F.2d
557, 558 (5th Cir. 1980) (finding the summary dismissal of a
Section 2255 motion was proper "[b]ecause in this case
the record, uncontradicted by [defendant], shows that he is
not entitled to relief); Hart v. United States, 565
F.2d 360, 361 (5th Cir. 1978) ("Rule 4(b) [Rules
Governing § 2255 Proceedings], allows the district court
to summarily dismiss the motion and notify the movant if
'it plainly appears from the face of the motion and any
annexed exhibits and the prior proceedings in the case that
the movant is not entitled to relief. . . .'").
See United States v. Deal, 678 F.2d 1062, 1065 (11th
Cir. 1982) (citing Wright and Hart).
Marchman's motion to vacate lacks merit.
pleaded guilty to one count of distributing fifty grams or
more of cocaine base and, under the terms of the plea
agreement, he benefitted from the dismissal of six additional
counts of conspiring, distributing, or possessing controlled
substances. Although he qualified as a career offender under
the Sentencing Guidelines, Marchman was originally sentenced
to 292 months because the quantity of drugs for which he was
responsible produced a higher sentencing range than his
status as a career offender. Amendments 706 and 711 lowered
the applicable range for calculating a sentence based on the
drug quantity. As a consequence, in 2008 Marchman was
re-sentenced to his present 262 months, which is based on his
status as a career offender because, under the Sentencing
Guidelines as amended, the career offender range is higher
than the drug quantity range.
erroneously argues that, based on recent Supreme Court
decisions, his prior convictions no longer qualify him for a
career offender sentence. First, the cases that Marchman
cites are inapplicable because his career offender sentence
is under the Sentencing Guidelines and not the Armed Career
Offender Act. See Beckles v. United States,
137 S.Ct. 886, 895 (2017). Second, Marchman has the required
two prior convictions for a controlled substance to support a
career offender sentence under Section 4Bl.l(a) even without
considering his other prior felony convictions.
the motion under Section 2255 to vacate the sentence (Doc. 1)
is DENIED. The clerk must enter a copy of this order in the
criminal action and close this case.
OF BOTH A CERTIFICATE OF APPEALABILITY AND LEAVE TO
APPEAL IN FORMA PAUPERIS
is not entitled to a certificate of appealability
("COA"). A prisoner moving under Section 2255 has
no absolute entitlement to appeal a district court's
denial of his motion to vacate. 28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue a COA. Section
2253(c)(2) permits issuing a COA "only if the applicant
has made a substantial showing of the denial of a
constitutional right." To merit a certificate of
appealability, Marchman must show that reasonable jurists
would find debatable both (1) the merits of the underlying
claims and (2) the procedural issues he seeks to raise. See
28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d
926, 935 (11th Cir 2001). Because he fails to show that
reasonable jurists would debate either the merits of the
claims or the procedural issues, Marchman is entitled to
neither a certificate of appealability nor an appeal in forma
a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Marchman must obtain authorization
from the circuit court to appeal in forma pauperis.
in Tampa, Florida.
 Marchman's original sentence of
292 months was reduced to 262 months under the retroactive
application of Amendments 706 and 711 to the United States
Sentencing Guidelines. (Doc. 39 in 03-cr-10)
 Unless later superseded by Eleventh
Circuit precedent, a Fifth Circuit decision issued before
October 1, 1981, binds this court. Bonner v. City of
Prichard, 661 F.2d 1206, ...