United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED SLATES DISTRICT JUDGE.
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), as amended (Civ. Doc. 8, First Motion
to Amend; Civ. Doc. 20, Second Motion to
Amend).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.
to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing
Section 2255 Proceedings, 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). For the reasons set forth below,
Early's Motion to Vacate is due to be denied.
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.
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, ¶
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).
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.
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.
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).
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
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 and Alleyne.” 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), and United States v.
Lockett, 810 F.3d 1262 (11th Cir. 2016), 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),  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).
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. §
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).
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 ...