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Mack v. United States

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

April 18, 2018

AMELIO D. MACK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TIMOTHY J. CORRIGAN United States District Judge

         This case is before the Court on Petitioner Amelio Mack's Motion to Vacate, Set Aside, or Correct Sentence. (Doc. 1). The government responded in opposition to the motion, (Doc. 9), to which Mack replied, (Doc. 12). Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has determined that an evidentiary hearing is not necessary to decide the petition. 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 that the facts he alleges are true, he still would not be entitled to any relief).

         I. BACKGROUND

         On November 13, 2013, Mack was indicted for conspiracy to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A), (Count I), and distribution of five or more kilograms of cocaine in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A), (Count II). (Cr. Doc. 1).[1] On May 12, 2014, Mack pled guilty to Count I of the indictment pursuant to a plea agreement with the government, and the court accepted his plea on May 14, 2014. (Cr. Docs. 32, 34). The factual basis supporting the guilty plea states in part:

In or about 2005, Amelio Mack began distributing multi-ounce quantities of cocaine to an individual in Jacksonville that was re-distributing the cocaine to others, one of whom was Cedric Sapp. Sapp learned that Mack was the source of supply for the cocaine and, in or about 2006, Mack gave his phone number to Sapp and they began dealing in cocaine directly with one another. . . . Mack and Sapp developed a close relationship, and Sapp was able to sell as much cocaine as Mack could provide. Over the years, the amount of cocaine that Mack supplied to Sapp increased.
In or about February 2010, Sapp and others got a warehouse on Lem Turner in Jacksonville, purchased some dump trucks, and started a business in an effort to appear to have some form of legitimate income. . . .
In or about September, 2011, Sapp and others moved from the Lem Turner warehouse to a warehouse on Dunn Avenue in Jacksonville. Sapp continued to get kilograms of cocaine from Mack on a regular basis, all of which were packaged in distinctive silver tape. . . . Mack would meet Sapp at the Dunn Avenue warehouse to deliver the cocaine, and receive payment for the cocaine. This continued until the last shipment on April 18, 2013.
. . . [O]n April 18, 2013, on [a] pole camera, which was recording all data, officers saw an individual, later identified as Amelio Mack, drive to the Dunn Avenue warehouse and take a duffle bag from the trunk of his car into the warehouse. Shortly thereafter, Mack left the warehouse. Later that day, the officers got a state search warrant for the warehouse and upon executing it, found 8 kilograms of cocaine, approximately $106, 000, and 10 empty kilogram wrappers from a prior shipment of cocaine.
On February 5, 2014, Mack was arrested in his residence in Jacksonville. Law enforcement officers obtained a search warrant for the residence and located, among other things, $281, 850.32 in U.S. currency, various jewelry, and the distinctive silver tape that was used to wrap the kilograms of cocaine.

(Doc. 9-1 at 20-22). During the plea process and at sentencing, Mack was represented by attorney Clyde Collins.

         The Presentence Investigation Report (“PSR”) states that during the search of Mack's residence, deputies found a Glock 23 pistol with a high capacity magazine and a fully loaded 12-guage shotgun. (Cr. Doc. 42 ¶ 22). Additionally, the PSR states “[b]ecause a firearm was present at the defendant's residence along with drug proceeds and items used in conjunction with his drug trafficking activities, a two-level increase [under U.S.S.G. § 2D1.1(b)(1)] is warranted.” (Cr. Doc. 42 ¶ 29). The PSR scored a total offense level of 37, which included a base offense level of 38, the 2 level firearm enhancement, and a 3 level reduction for acceptance of responsibility. (Cr. Doc. 42 ¶¶ 28-37). Mack's criminal history score was seven, giving him a criminal history category of IV. (Cr. Doc. 42 ¶¶ 58-59). According to the PSR, the minimum term of imprisonment was 10 years, the maximum term was life, and the guideline imprisonment range was 292 to 365 months. (Cr. Doc. 42 ¶¶ 89-90).

         At sentencing, the court reviewed these calculations with Mack and the government. (Doc. 9-3 at 6-8). Neither party objected to the factual statements contained in the PSR. (Doc. 9-3 at 6). Collins did object to the PSR's guideline calculation. (Doc. 9-3 at 7). According to the plea agreement, Mack was supposed to get a two level reduction in the base offense level pursuant to the United States Sentencing Commission's proposed amendment to the drug guidelines. (Doc. 9-3 at 7). Collins then argued for other downward variances, including: for cooperation with law enforcement; that his criminal history score over represents the seriousness of his past criminal conduct; that his coconspirator only received a four year sentence in state court; that Mack has a caring family whom he had always supported; that he has physical ailments and illnesses the court should consider; and that statistical analysis supports a sentence closer to ten years than to twenty years. (Doc. 9-3 8-42). However, during the hearing, neither Mack nor Collins objected to the PSR's recommended firearm enhancement. (Doc. 9-3).

         The Court agreed to accept a two-level downward variance based on the proposed amendments to the Sentencing Guidelines, but did not otherwise vary the guideline range. (Doc. 9-3 at 43). This gave Mack a guideline range of 235 to 293 months of imprisonment, and the court sentenced Mack to a term of imprisonment of 235 months. (Doc. 9-3 at 44). Mack, represented by new counsel, filed an appeal, but then voluntarily dismissed it pursuant to the appeal waiver in his plea agreement. (Cr. Docs. 65, 70, 74).

         Mack now collaterally attacks his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1 at 7). Mack's petition asserts only one ground: that Collins's failure to object to the two-level firearm enhancement under U.S.S.G. § ...


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