United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE.
THE COURT are Petitioner's Amended Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (CV Dkt. 4), Petitioner's
memorandum in support (CV Dkt. 4 Ex. 1), the Government's
Response (CV Dkt. 8), and Petitioner's Reply (CV Dkt. 9).
Upon review, Petitioner's Section 2255 motion is DENIED.
A review of the record shows that his claims are procedurally
to a plea agreement, Petitioner pleaded guilty to Count One
of the Indictment, in which he was charged with conspiracy to
possess with intent to distributer and to distribute cocaine
(CR Dkts. 47, 50, 53, 54). He was sentenced to 180 months in
prison, followed by six years of supervised release. (CR Doc.
61). He did not appeal, but filed a § 2255 motion. (CR
Dkts. 67, 68; 8:11-cv-240-T-27AEP, Dkts. 1, 2). In his
petition, he raised three claims of ineffective assistance of
counsel. Grounds One and Three, which alleged that he was
incorrectly sentenced as a career offender and that he was
prejudiced by cumulative errors in the case, were denied.
(8:11-cv-240~T-27AEP, Dkt 15). An evidentiary hearing was
held on Ground Two, in which he alleged that his attorney
failed to file an appeal after being requested to do so, and
failed to consult with him about an appeal. (Id. at
Dkt. 14). The motion was granted on Ground Two, the same
sentence was imposed, and he was granted the right to appeal
(Id. at Dkt. 19).
appeal, he argued that the Government "breached its
obligations in the plea agreement to (1) provide him with an
opportunity to earn a substantial assistance motion pursuant
to [United States Sentencing Guidelines Section] 5K1.1 prior
to sentencing, and (2) to make known to the district court
the nature and extent of his cooperation with the
[G]overnment, " and "that the district court
plainly erred by failing to determine that the [G]overnment
breached the plea agreement." United Stales v.
Cuevas, 507 Fed.Appx. 901, 902 (11th Cir. 2013). He also
challenged his sentence as grossly disproportionate to his
offense in violation of the Eighth Amendment. Id. at
903. The Eleventh Circuit affirmed. Id. at 903-904.
then filed two motions in his criminal case challenging his
career offender enhancement. (CR Dkts. 22, 24). The motions
were denied as unauthorized successive Section 2255 motions
and dismissed for lack of jurisdiction. (CR Dkt. 26). On
reconsideration, the order denying the motions was vacated
and Petitioner was ordered to notify the Court "whether
he (1) withdraws his motions ..., (2) intends to amend the
motions, or (3) desires that the motions be considered,
collectively, a Section 2255 motion as filed." (CR Dkt.
compliance with the Order, Petitioner filed the instant
Petition (8:1 l-cv-240-T-27AEP Dkt. 31; CV Dkt. 4),
which presents the following six grounds for relief:
FLORIDA STATUTES CHAPTER 893 IS OVERB[RO]AD AND NOT A
CATEGORICAL GENERIC FELONY DRUG OFFENSE[.]
(CV Dkt. 4 Ex. 1 at 1).
FLORIDA STATUTE § 893.13-AS MODIFIED BY §
893.101-IS AN INDIVISIBLE STATUTE WHICH DOES NOT PERMIT A
COURT TO USE THE MODIFIED CATEGORICAL APPROACH TO FIND THE
MISSING GENERIC ELEMENT (KNOWLEDGE OF THE ILLIC[I]T NATURE OF
(CV Dkt. 4 Ex. 1 at 19).
UNDER THE "CATEGORICAL APPROACH" MOVANT'S
CONVICTION UNDER THE NOW STRICT LIABILITY FLORIDA DRUG
STATUTE IS NOT A DRUG TRAFFICKING OFFENSE AND IS NOT A
CONTROLLED SUBSTANCE OFFENSE UNDER § 4B1.2.
(CV Dkt. 4 Ex. Iat21).
BECAUSE MOVANT'S FLORIDA DRUG PRIORS DID NOT MEET THE
DEFINITION OF A "CONTROLLED SUBSTANCE. OFFENSE" IN
§ 4B1.2 THEY DID NOT QUALIFY AS PREDICATE DRUG OFFENSES
UNDER THE CAREER OFFENDER PROVISIONS OF THE GUIDELINES [.]
(CV Dkt. 4 Ex. 1 at 22).
THE CAREER CRIMINAL ENHANCEMENT IMPOSED ON MOVANT PURSUANT TO
§ 4B1.2 IS NULL AND VOID BECAUSE IT CONFLICTS WITH TITLE
21 U.S.C. § 851(a)(1)
WHERE THE SENTENCING GUIDELINES CANNOT SUPERSEDED A FEDERAL
STATUTE WITH WHICH IT CONFLICTS[.]
(CV Dkt. 4 Ex. 1 at 21)
MOVANT'S CAREER OFFENDER ENHANCEMENT WAS IMPOSED IN
VIOLATION OF THE FULL FAITH AND CREDIT ACT.
(CV Dkt. 4 Ex. 1 at 30).
these grounds relate to Petitioner's classification and
enhanced sentence as a career offender, which he argues was
applied in ...