United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE
THE COURT is Petitioner's Motion for Reconsideration
Pursuant to Rule 59(e) of the Fed.R.Civ.P. (cv Dkt.
"The only grounds for granting [a Rule 59] motion are
newly-discovered evidence or manifest errors of law or
fact." Arthur v. King, 500 F.3d 1335, 1343
(11th Cir. 2007) (quoting In re Kellogg,
197 F.3d 1116, 1119 (11th Cir. 1999)). The motion is denied.
first contends that the court erred in denying Ground One of
his § 2255 motion because in light of Mathis v.
United States, 136 S.Ct. 2243 (2016), "21 U.S.C.
§ 841(a) is not categorically a felony offense..
.." (cv Dkt. 18, p. 2). Petitioner merely reargues an
issue already argued and rejected. "'[A] motion for
reconsideration should not be used.. .to reiterate arguments
previously made.'" Del. Valley Floral Group,
Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1384 (Fed.
Cir.) (quoting Z.K Marine, Inc. v. M/VArchigetis,
808 F.Supp. 1561, 1563 (S.D. Fla. 1992)). Moreover, his
contention is without merit since possession of cocaine with
intent to distribute is unquestionably a felony that triggers
the career offender enhancement. United States v.
Carr, 573 Fed.Appx. 840, 841 (11th Cir. 2014)
("Carr pied guilty to possession with intent to
distribute crack cocaine in violation of 21 U.S.C. § 841
(a)(1) and (b)(1)(B)(iii), a class B felony.").
next contends that the court erred in denying Ground Three of
his § 2255 motion. He asserts that the court erred in
determining that he was correctly sentenced as a career
offender because he had at least two prior felony convictions
for crimes of violence. He argues that he does not have two
prior convictions for crimes of violence because his
attempted murder, attempted armed robbery, and armed robbery
convictions should not have been considered as separate
offenses. He contends that those convictions should count as
only one conviction under the career offender guideline
because there was no intervening arrest between those
offenses, the offenses were contained in the same charging
instrument, and the sentences for those offenses were imposed
on the same day. The court will not consider this argument
raised for the first time in a motion for reconsideration.
See Michael Linet, Inc. v. Village of Wellington,
Fla., 408 F.3d 757, 763 (11th Cir. 2005) (Rule 59(e)
motion for reconsideration cannot be used to relitigate old
matters, raise arguments or present evidence that could have
been raised prior to the entry of judgment).
further contends that the court erred in determining that his
two prior convictions for delivery of cocaine were
"controlled substance offenses" under 4Bl.l(a),
U.S.S.G., because at the time he committed those offenses
(1993) the statute under which he was convicted, Fla. Stat.
§ 893.13, applied to offenses that involved the sale,
manufacture, or delivery of a controlled substance and to
offenses that involved the mere purchase of a controlled
substance. Although he correctly asserts that under U.S.S.G.
§ 4B1.2(b), a conviction for the mere purchase of
controlled substance is not a "controlled substance
offense" under U.S.S.G. § 4B1.1, see United
States v. Hernandez, 145 F.3d 1433, 1440 (11th
Cir.1998), it is clear on the face of the judgments that
Petitioner was convicted of two counts of delivery of cocaine
(see cv Dkt. 15-1, pp. 24, 39). Accordingly, the convictions
are "controlled substance offenses." See United
States v. Bailey, 522 Fed.Appx. 497, 499(11th Cir.
Petitioner was correctly sentenced as a career offender.
Accordingly, he has failed to demonstrate that this court
committed a manifest error of law in denying his Section 2255
motion. His Motion for Reconsideration Pursuant to
Rule 59(e) of the Fed.R.Civ.P. (cv Dkt. 18) is therefore
OF APPEALABILITY (COA)
is not entitled to a COA. He has no absolute entitlement to
appeal the denial of his motion. Rather, a COA must first
issue. Cf. Perez v. Sec 'y Fla. Dep 't of
Corr., 711 F.3d 1263 (11th Cir. 2013). See also
United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir.
2005) (COArequired to appeal denial of Rule 59(e) motion that
"sought ultimately to resurrect the denial of his
earlier § 2255 motion..."). "A [COA] may
issue...only if the applicant has made a substantial showing
of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). To make that showing, Petitioner
"must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong, " Tennardv. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that "the issues presented
were 'adequate to deserve encouragement to proceed
further.'" Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)). Petitioner cannot make the
requisite showing. Since he is not entitled to a COA, he is
not entitled to appeal in forma pauperis.
Respondent filed a response to the
motion (cv Dkt. 20), to which Petitioner replied (cv Dkt.
Section 4B 1.2(c), U.S.S.G., states
that "two prior felony convictions' means... the
sentences for at least two of the . . . felony convictions
are counted separately under § 4Al.l(a), (b), or
(c)." Section 4A 1.2(a)(2), U.S.S.G., provides
Prior sentences always are counted separately if the
sentences were imposed for offenses that were separated by an
intervening arrest (i.e., the defendant is arrested for the
first offense prior to committing the second offense). If
there is no intervening arrest, prior sentences are counted
separately unless (A) the sentences resulted from offenses
contained in the same charging instrument; or (B) the
sentences were imposed on the same day.
Even if Petitioner has only one prior
predicate crime of violence, he still has two prior predicate
controlled substance ...