United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
moves (Doc. 1) to vacate his sentence under 28 U.S.C. §
2255 and asserts four grounds of ineffective assistance of
counsel. Upon consideration of the report and recommendation
by Magistrate Judge Thomas G. Wilson and Peterson's
objections (Docs. 32 and 37), an earlier order (Doc. 38) both
denies ground one, which alleged that trial counsel rendered
ineffective assistance by not appealing, and enters a
judgment. A later order (Doc. 42) grants Peterson's
motion to vacate the judgment because Peterson's three
other grounds remained undecided. The present order
determines that the remaining grounds warrant no relief.
was charged with conspiracy to possess with the intent to
distribute 100 kilograms or more of marijuana. The United
States filed a “Notice of Prior Conviction” (Doc.
20 in 09-cr-160), which triggered the possibility of an
enhanced sentence under 21 U.S.C. § 851. (Doc. 20 in
08-cr-160) Peterson pleaded guilty and admitted to the
following facts in his plea agreement (Doc. 25 at 14 in
From an unknown date through October 17, 2008, in the Middle
District of Florida, and elsewhere, the defendant
participated with Dwight Breary and others in an unlawful
agreement to distribute 100 kilograms or more of marijuana.
The defendant would receive quantities of marijuana from
Breary, totaling in excess of 100 kilograms, which the
defendant would thereafter distribute to others in and around
Pinellas County, Florida, before returning payment to Breary.
Numerous telephone calls intercepted pursuant to a court
order revealed the marijuana relationship between the
defendant and Breary.
to the “Presentence Investigation Report, ”
Peterson earned a Criminal Offense Level 25 and a Criminal
History Category VI. However, based on trial counsel's
arguments at sentencing, Peterson's guideline range was
lowered to an Offense Level 23 and a Criminal History
Category V. The reduced guideline range proved of no benefit
because the statutory mandatory minimum sentence under
Section 851 is imprisonment for 120 months, which Peterson
remaining claims of ineffective assistance of counsel fault
counsel for not opposing an enhancement under Section 851
(ground two), not pursuing application of Amendment 709 to
the Sentencing Guidelines (ground three), and not seeking the
return of $27, 600 seized from his residence (ground four).
Each claim lacks merits or is otherwise barred under the plea
United States properly notified Peterson of its intent to
pursue an enhanced sentence under 21 U.S.C. § 851 based
on Peterson's 1996 conviction for possession of cocaine
in Case No. 96-255CFANO, Sixth Judicial Circuit, Pinellas
County, Florida). In ground two of his motion to vacate
Peterson argues the inapplicability of Section 851 because he
contends that the conviction was a misdemeanor. To the
contrary, possession of cocaine is a third degree felony
under Chapter 893.13(6)(A), Florida Statutes (1995), and
remains so today. Moreover, the 1996 conviction was too old
for counsel to challenge because Section 851(e) precludes
challenging a prior conviction “which occurred more
than five years before the” federal criminal
United States correctly argues that, to the extent he seeks
application of the Fair Sentencing Act of 2010
(“FSA”), Peterson is entitled to no relief under
the FSA because he was sentenced before the FSA's
effective date. Peterson was sentenced on September 14, 2009.
The FSA became effective nearly a year later on August 3,
2010. Dorsey v. United States, 567 U.S. 260, 282
(2012); United States v. Sumerlin, 489 F. App'x
375, 377 (11th Cir. 2012) (applying Dorsey).
to the extent he argues that the 1996 prior conviction was
improperly used to determine his Criminal History Category,
Peterson waived challenging the district court's
application of the sentencing guidelines (other than for
certain inapplicable exceptions) when he pleaded guilty under
the plea agreement, which provides as follows (Doc. 25 at
11-12 in 09-cr-160):
The defendant agrees that this Court has jurisdiction and
authority to impose any sentence up to the statutory maximum
and expressly waives the right to appeal defendant's
sentence or to challenge it collaterally on any ground,
including the ground that the Court erred in determining the
applicable guidelines range pursuant to the United States
Sentencing Guidelines . . . .
appeal waiver precludes an ineffective assistance of counsel
challenge to the sentence, other than a challenge to the
validity of the plea or the plea agreement. “When a
valid sentence-appeal waiver containing express language
waiving the right to attack a sentence collaterally is
entered into knowingly and voluntarily, it will be
enforceable and serve to prevent a movant from collaterally
attacking a sentence on the basis of ineffective assistance
of counsel.” Thompson v. United States, 353 F.
App'x 234, 235 (11th Cir. 2009) (per curiam).
See Cowart v. United States, 139 F. App'x 206,
207S08 (11th Cir. 2005) (holding that a claim that challenges
the validity of the guilty plea or the appeal waiver, and not
the sentence, is not precluded by a sentence-appeal waiver),
citing United States v. Copeland, 381 F.3d 1101,
1105 (11th Cir. 2004)). Peterson asserts no challenge to the
validity of the plea.
cannot circumvent this waiver under the guise of ineffective
assistance of counsel. A valid appeal waiver precludes an
ineffective assistance of counsel challenge to the sentence,
as Williams v. United States, 396 F.3d 1340, 1342
(11th Cir.), cert. denied 546 U.S. 902 (2005),
[A] valid sentence-appeal waiver, entered into voluntarily
and knowingly, pursuant to a plea agreement, precludes the
defendant from attempting to attack, in a collateral
proceeding, the sentence through a claim of ineffective
assistance of counsel during sentencing. [A] contrary result
would permit a defendant to circumvent the terms of the
sentence-appeal waiver simply by recasting a challenge ...