United States District Court, M.D. Florida, Jacksonville Division
AMELIO D. MACK, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TIMOTHY J. CORRIGAN United States District Judge
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
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). 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
(Doc. 9-1 at 20-22). During the plea process and at
sentencing, Mack was represented by attorney Clyde Collins.
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
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).
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).
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. §