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Early v. United States

United States District Court, M.D. Florida, Jacksonville Division

April 4, 2018

JAMES LAMARK EARLY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MARCIA MORALES HOWARD UNITED SLATES DISTRICT JUDGE.

         This case is before the Court on Petitioner James Lamark Early's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, Motion to Vacate)[1], as amended (Civ. Doc. 8, First Motion to Amend; Civ. Doc. 20, Second Motion to Amend).[2]Early also filed a number of motions for leave to cite supplemental authorities, which the Court construes as notices of supplemental authority. (Civ. Doc. 4, First Notice of Supplemental Authority; Civ. Doc. 14, Second Notice of Supplemental Authority; Civ. Doc. 16, Third Notice of Supplemental Authority). Early raises several claims, but they all revolve around his classification as a career offender under § 4B1.1 of the United States Sentencing Guidelines. The United States has responded (Civ. Doc. 12, Response; Civ. Doc. 25, Response to Second Motion to Amend), and Early has replied (Civ. Doc. 13, First Reply; Civ. Doc. 26, Second Reply). The case is ripe for a decision.

         Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings[3], the Court has considered the need for an evidentiary hearing and determines that an evidentiary hearing is not necessary to resolve the merits of this action. See Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (an evidentiary hearing on a § 2255 petition is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir. 1982) (“On habeas a federal district court need not conduct an evidentiary hearing if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel.”); Patel v. United States, 252 Fed.Appx. 970, 975 (11th Cir. 2007).[4] For the reasons set forth below, Early's Motion to Vacate is due to be denied.

         I. Background

         On April 19, 2012, a grand jury sitting in the Middle District of Florida indicted Early on one count of conspiracy to distribute 280 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count One); one count of maintaining a drug premises, in violation of 21 U.S.C. § 856(a) (Count Two); and four counts of distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts Six through Nine). (Crim. Doc. 1, Indictment). Shortly thereafter, the United States filed an information to establish prior convictions under 21 U.S.C. § 851 (Crim. Doc. 13, § 851 Information; Crim. Doc. 13-1, Judgments of Prior Convictions), which increased Early's potential maximum sentence pursuant to 21 U.S.C. § 841(b). The § 851 Information identified five prior convictions (all of which occurred in St. Johns County, Florida): (1) the unlawful sale or delivery of a controlled substance in Case No. CF97-2550, (2) the possession of cannabis with intent to sell in Case No. CF01-2706, (3) the possession of cannabis with intent to sell in Case No. CF02-1348, (4) the possession of cocaine with intent to sell in Case No. 01-171CF, and (5) the sale of cocaine in Case No. 01-172CF.

         On October 30, 2013, Early pled guilty to Counts Six through Nine under a written Plea Agreement. (Crim. Doc. 103, Plea Agreement; Crim. Doc. 137, Change of Plea Transcript [“Plea Tr.”]). Of particular relevance, Early stipulated that he qualified to be sentenced as a career offender under U.S.S.G. § 4B1.1. Plea Agreement at 3, ¶ A.6. Early further acknowledged that he faced a potential prison sentence of 30 years as to each count, and that cumulatively, he faced a potential prison sentence of up to 120 years. Id. at 2, ¶ A.2. In exchange for Early's guilty pleas, the United States agreed to dismiss Counts One and Two of the Indictment, and to recommend a downward adjustment under § 3E1.1(a) of the United States Sentencing Guidelines for acceptance of responsibility. Plea Agreement at 3, ¶ A.4; 4, ¶ A.7.

         During the plea colloquy, after placing Early under oath, the magistrate judge asked Early whether he and his attorney had discussed the federal sentencing guidelines, and Early affirmed that they had. Plea Tr. at 12. The magistrate judge also asked Early - several times - whether he had read and understood the Plea Agreement, and whether he had discussed it with his attorney. Id. at 8, 17-18, 19, 22. Each time, Early responded affirmatively. Early stated that he had no questions about his Plea Agreement, that he had been given adequate time to discuss the case with his attorney, and that he was satisfied with his attorney's representation. Id. at 19, 22, 32-33. Having been thoroughly advised of his rights, and of the nature and consequences of pleading guilty, Early affirmed to the Court that he wished to plead guilty to Counts Six through Nine. Id. at 22-23, 33-34. The Court accepted Early's plea and adjudicated him guilty. (Crim. Doc. 112, Acceptance of Plea and Adjudication of Guilt).

         Early's sentencing proceedings occurred over the course of three hearings on April 7, April 24, and April 25, 2014. (Crim. Doc. 139, Sentencing Transcript, Volume I [“Sent. Tr., Vol. I”]; Crim. Doc. 141, Sentencing Transcript, Volume II [“Sent. Tr., Vol. II”]; Crim. Doc. 143, Sentencing Transcript, Volume III [“Sent. Tr., Vol. III”]). Early's counsel, Gerald Bettman, contested several aspects of the Presentence Investigation Report (PSR), including the drug quantity attributable to Early, whether he deserved a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1), and whether Early deserved a two-level enhancement for maintaining a drug premises under U.S.S.G. § 2D1.1(b)(12). (Crim. Doc. 117, Sentencing Memorandum at 1-3). Consistent with his Plea Agreement, however, Early acknowledged that he qualified to be sentenced as a career offender and never contested the designation. See Sent. Tr. Vol. I at 19; Sent. Tr. Vol. II at 12-13, 42, 80-81. Ultimately, the Court determined that Early's total offense level under the Sentencing Guidelines was 32 and his Criminal History Category was VI, yielding an advisory sentencing range of 210 to 262 months in prison. Sent. Tr. Vol. II at 51. After hearing both sides' arguments concerning the 18 U.S.C. § 3553(a) factors and listening to mitigation, the Court varied below the Guidelines range and sentenced Early to concurrent terms of 170 months in prison as to each count, followed by six years of supervised release. Sent. Tr. Vol. III at 12; Crim. Doc. 124, Judgment.

         Early did not file a notice of appeal. As such, his conviction and sentence became final 14 days after the Court entered judgment. Less than a year later, Early timely filed the instant Motion to Vacate. Early raises several claims, including three claims of ineffective assistance of counsel, all of which relate to his status as a career offender. For the reasons set forth below, each claim lacks merit.

         II. Discussion

         Pursuant to Title 28, United States Code, Section 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral challenges on four specific grounds: (1) the imposed sentence was in violation of the Constitution or laws of the United States; (2) the court did not have jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that are so fundamentally defective as to cause a complete miscarriage of justice will warrant relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979). A petitioner's challenge to his sentence based on a Sixth Amendment claim of ineffective assistance of counsel is normally considered in a collateral attack. United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).

         As with any Sixth Amendment ineffective assistance of counsel claim, a § 2255 petitioner must demonstrate both: (1) that his counsel's conduct amounted to constitutionally deficient performance, and (2) that his counsel's deficient performance sufficiently prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). In determining whether the petitioner has satisfied the first requirement, i.e. that counsel performed deficiently, the Court adheres to the standard of reasonably effective assistance. Weeks, 26 F.3d at 1036. The petitioner must show, in light of all the circumstances, that counsel's performance fell outside the “wide range of professionally competent assistance.” Id. To satisfy the second requirement, that counsel's deficient performance prejudiced the defendant, the petitioner must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 1036-37 (citing Strickland, 466 U.S. at 694). In determining whether a petitioner has met the two prongs of deficient performance and prejudice, the Court considers the totality of the evidence. Strickland, 466 U.S. at 695. However, because both prongs are necessary, “there is no reason for a court… to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss the performance deficiency component of [petitioner's] ineffective assistance claim because failure to satisfy the prejudice component is dispositive.”).

         A. Ground One

         In Ground One, Early claims that counsel was ineffective because he failed to argue that “Petitioner was erroneously classified as a career offender where his instant crime of conviction under 21 U.S.C. § 841(a) contains no penalty provision and therefore does not categorically define a federal felony offense as required under § 4B1.1 and § 994(h)(1) post-Descamps[5] and Alleyne[6].” Motion to Vacate at 4. Early filed a notice of supplemental authority, in which he contends that Moncrieffe v. Holder, 133 S.Ct. 1678 (2013)[7], and United States v. Lockett, 810 F.3d 1262 (11th Cir. 2016)[8], support the claim that his conviction under § 841(a) cannot count as a “controlled substance offense” under U.S.S.G. § 4B1.1. (Civ. Doc. 14, Second Notice of Supplemental Authority). Early also filed the Second Motion to Amend, which the Court construes as a notice of supplemental authority, to argue that Mathis v. United States, 136 S.Ct. 2243 (2016), [9] also supports his claim that the instant offense of conviction under § 841(a) is not categorically a felony, and therefore not a controlled substance offense. (Civ. Doc. 20, Second Motion to Amend).

         Early's claim lacks merit for several reasons. First, Early admitted to being a career offender as part of his Plea Agreement. Early points to nothing suggesting that any part of his guilty plea, including the career offender stipulation, was anything less than knowing and voluntary. Indeed, Early acknowledged at the plea colloquy that he and his attorney had discussed the federal sentencing guidelines, Plea Tr. at 12, and that he had fully read and understood the Plea Agreement, id. at 8, 17-18, 19, 22. These statements, made under oath, establish that Early knowingly and voluntarily accepted the career offender stipulation, which he cannot disregard now. See United States v. Makris, 221 Fed.Appx. 856, 857-58 (11th Cir. 2007). Second, counsel did not have a reasonable basis for arguing that a conviction under 21 U.S.C. § 841(a) is not a “controlled substance offense.” To the Court's knowledge, no court has ever held that 21 U.S.C. § 841(a) is not a controlled substance offense within the meaning of the career offender provision. None of the case law Early cites supports this contention, or even involves the application of the career offender enhancement. Indeed, a violation of 21 U.S.C. § 841 seems to be the quintessential controlled substance offense. Section 994(h) of Title 28, United States Code, which directs the United States Sentencing Commission to develop a career offender guideline, specifically lists a violation of 21 U.S.C. § 841 as the type of offense of conviction that would trigger the application of the enhancement. 28 U.S.C. § 994(h)(1)(B).

         Moreover, Early's argument ignores that he was indicted for, and pled guilty to, not just violations of 21 U.S.C. § 841(a)(1), but also violations of § 841(b)(1)(C). Indictment at 3-5; Plea Agreement at 1, ¶ A.1; see also Plea Tr. at 14-15. While § 841(a)(1) itself does not contain any penalty provisions, § 841(b) does, depending on the type and quantity of the controlled substance. Following Apprendi and Alleyne, the type and quantity of the controlled substance are elements of a violation under § 841(a). United States v. Curbelo, 726 F.3d 1260, 1267-70 (11th Cir. 2013). Early admitted his guilt under § 841(b)(1)(C) as well as § 841(a)(1), meaning he admitted to distributing a schedule I or schedule II controlled substance. In other words, the instant offense of conviction consists not only of Early's conviction for distributing a controlled substance in violation of § 841(a)(1), but specifically for distributing a schedule I or schedule II controlled substance (cocaine base) in violation of § 841(b)(1)(C), which carries a maximum term of imprisonment of 20 years (or 30 years in the case of a person who, like Early, has a prior conviction for a felony drug offense). Early's argument that § 841(a) is not a “controlled substance offense” because it does not contain a penalty provision ignores the fact that the types and quantities of controlled substances are elements of the offense as well, as set forth in § 841(b).

         Turning to the definition of a “career offender” and a “controlled substance offense, ” the instant offenses of conviction under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) qualified Early for the career offender enhancement. According to U.S.S.G. § 4B1.1(a):

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior ...

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