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United States v. Millender

United States District Court, N.D. Florida, Pensacola Division

February 15, 2018




         The matter is before the Court on Defendant Ira Jerome Millender, Jr.'s objection to the magistrate judge's Report and Recommendation, which advises the Court to deny Mr. Millender's Amended Motion to Correct Sentencing under 28 U.S.C. § 2255. I have made a de novo determination of objections filed and the responses thereto. Having considered the Report and Recommendation and the parties' timely responses, I have determined that the Report and Recommendation should be adopted as the opinion of the Court for the following reasons.

         I. Background

         On February 28, 2011, Mr. Millender pled guilty to violating 18 U.S.C. § 922(g), which criminalizes the possession of a firearm by a convicted felon. See ECF No. 19. A Section 922(g) violation ordinarily imposes a sentence of no more than ten years, see 28 U.S.C. § 924(a)(2). However, under the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924, a perpetrator with three predicate offenses is subject to a fifteen-year sentence as a minimum. The ACCA defines predicate offenses to include serious drug offenses and three types of violent felonies: (1) felonies that have “the use, attempted use, or threatened use of physical force against the person of another” as an element (the “Elements Clause”); (2) burglary, arson, extortion, or crimes involving the use of explosions (the “Enumerated Clause”); and (3) felonies that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another” (the “Residual Clause”). 28 U.S.C. § 924(e)(2)(B)(i) and (ii).

         Mr. Millender had four relevant convictions at the time of his sentencing: one conviction for discharging a firearm from a vehicle, one conviction for conspiracy to possess with intent to sell crack cocaine, and two convictions for aggravated battery. See ECF No. 25 at 10-13. At the sentencing hearing, Mr. Millender contended that his two convictions for aggravated battery constitute one offense under the ACCA, reasoning that the ACCA counts multiple convictions as a single offense where they occurred simultaneously and not in succession, see 28 U.S.C. § 924(e)(1) (requiring that three previous convictions be “committed on occasions different from one another”), and that his two aggravated batteries occurred around the same place and time. With respect to his aggravated battery convictions, Mr. Millender's Presentencing Report (“PSR”) provides that:

On November 11, 1992, in Pensacola, Florida, the defendant was involved in an argument with Alonzo Knight and Mike Carstarphen concerning some females and the defendant's girlfriend. During this argument, the defendant reached into his pocket, removed a handgun, and shot two rounds at the victims. One of the bullets struck Knight in the left thigh, and the other bullet struck Carstarphen in the left hand.

ECF No. 25 at 10 (Paragraph 42 of the PSR).[1] The Court concluded that Mr. Millender's two aggravated batteries constitute two convictions under the ACCA, but noted that it did not need to reach this decision. The sentencing enhancement applied, regardless, due to Mr. Millender's prior convictions for discharging a firearm from a vehicle and conspiracy to possess with intent to sell crack cocaine. See ECF No. 39 at 17-18. Mr. Milender appealed this ruling to the Eleventh Circuit, which declined to reach this issue on the same basis. See United States v. Millender, 458 F. App'x 791, 792 (11th Cir. 2012) (explaining that Mr. Millender would have had at least three qualifying predicate offenses “even if the district court had not committed the purported counting error, ” so “the alleged error” had no impact on the applicability of the ACCA sentencing enhancement).

         On June 26, 2015, the Supreme Court found the ACCA's Residual Clause to be void for vagueness. See Johnson v. United States, 135 S.Ct. 2551, 2562-63 (2015). This prompted Mr. Millender to, on August 24, 2014, file a pro se motion to vacate under 28 U.S.C. § 2255, which was superseded by his Amended Motion to Correct Sentence under 28 U.S.C. § 2255 (the “Amended Motion”), ECF No. 89. In his Amended Motion, Mr. Millender argues that, under Johnson, his conviction for discharging a firearm from a vehicle is no longer a predicate offense (the “Johnson Challenge”) and reiterates that his two convictions for aggravated battery should count as a single predicate offense. This would mean that he committed two offenses under the ACCA and that the sentencing enhancement did not apply.

         The Government concedes that Mr. Millender's conviction for discharging a firearm from a vehicle is no longer a predicate offense under the ACCA and that his challenge on this basis is timely. It, instead, argues that the Court properly construed the two aggravated batteries as two offenses in the initial sentencing proceedings and Mr. Millender failed to timely argue otherwise. On May 19, 2017, the magistrate judge concluded that, “because one of the convictions used to enhance [Mr. Millender's] sentence is now invalid under Johnson, the court must determine whether the record shows the requisite number of predicate offenses remaining to qualify for a sentencing enhancement under the ACCA, ” making the Government's timeliness argument moot. The magistrate judge nevertheless advised that the ACCA enhancement should be upheld, deferring to the Court's conclusion, in dicta, that the aggravated battery convictions constituted separate offenses. He further advised that the Court should not issue a certificate of appealability, to which Mr. Millender also objects.

         II. Discussion

         The Court overrules Mr. Millender's objections and adopts the magistrate's report and recommendation as the opinion of the Court. Because Mr. Millender's sentence now turns on his argument that the two aggravated felonies constitute one offense under the ACCA, the Court elaborates on its determination that they constitute separate offenses below.

         A defendant is subject to an ACCA sentencing enhancement if the defendant has been convicted of three drug-related or violent crimes on “occasions different from one another.” 18 U.S.C. § 922. The Eleventh Circuit, like other courts of appeals, has explained that a crime has occurred on different occasions where they “arose out of a separate and distinct ‘criminal episode.'” United States. v. Pope, 132 F.3d 684, 689 (11th Cir. 1998) (quoting United States v. Greene, 810 F.2d 999, 1000 (11th Cir. 1986)). Two criminal acts are a part of “distinct” episodes “if the perpetrator had a meaningful opportunity to desist his activity before committing the second offense.” Id. at 690. Courts consider the time and place in which the acts are committed to determine whether criminal acts are part of distinct episodes. See Id. at 689-90. However, these differences are not dispositive where the perpetrator “made a conscious decision” to commit a second criminal act, that is, if “the predicate crimes are successive rather than simultaneous, ” id. at 690 & 692.

         In United States v. Pope, a perpetrator broke into two offices, located 200 yards apart, on the same night. The Eleventh Circuit found that the burglaries constituted two offenses under the ACCA because “Pope had completed his first burglary when he made the decision to commit the second burglary by breaking into another office, ” id. at 692, notwithstanding that the two burglaries were committed in “one course of criminal conduct, ” see United States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000) (“It is true that the crimes represent one course of criminal conduct, but so did the burglaries in Pope. The more important point is that as in Pope, Lee here successfully completed his first crime.”). The Eleventh Circuit reasoned that, because the ACCA's purpose is to deter additional, deliberate criminal behavior, the sentencing enhancement applies where the perpetrator completed the first criminal act before starting the second act and not where, for instance, a perpetrator simultaneously robs six people by “sticking up” a restaurant. See Pope, 132 F.3d at 691-692.

         Consistently, in United States v. McCloud, 818 F.3d 591, 597-98 (11th Cir. 2016), the Eleventh Circuit found that a perpetrator who robbed three different victims with the help of two co-defendants may not have committed separate offenses under the ACCA. The Eleventh Circuit ...

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