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United States v. Richman

United States District Court, M.D. Florida, Fort Myers Division

April 19, 2018

UNITED STATES OF AMERICA
v.
ULYSSES RICHMAN

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant's Motion Under Federal Rules of Criminal Procedure, Pursuant to Rule 52(b), for Plain Error (Doc. #105) filed on March 23, 2018. Read liberally, defendant asserts that plain error under Rule 52(b) occurred when the Armed Career Criminal Act was utilized to enhance his sentence. The government did not file a response.

         I.

         Defendant pleaded guilty to being a felon in possession of a firearm and to possession with intent to distribute cocaine. (Docs. #51, #53.) During the change of plea, defendant stated that he understood that the mandatory minimum sentence in his case would be 15 years. (Doc. #90, pp. 11-12.) On October 27, 2014, defendant was sentenced to 180 months as to each count, to be served concurrently, followed by a term of supervised release. (Doc. #66.) At sentencing, defendant was found to be both a career offender and an armed career criminal based upon three prior state drug convictions:

Sale or Delivery of Cocaine in the Circuit Court, 20th Judicial Circuit, in and for Lee County, Florida, in Case No. 04-CF-001664, convicted on October 19, 2004;
Sale or Delivery of Cocaine in the Circuit Court, 20th Judicial Circuit, in and for Lee County, Florida, in Case No. 06-CF-020666, convicted on July 25, 2008; and
Sale or Delivery of Cocaine Circuit Court, 20th Judicial Circuit, in and for Lee County, Florida, in Case No. 08-CF-014837, convicted on August 7, 2008.

(Doc. #57, ¶¶ 26-27.) Defendant had pled nolo contendere and was adjudicated guilty in all three Florida State cases for the sale or delivery of cocaine in violation of Fla. Stat. § 893.13, a second degree felony that carries a term of imprisonment not exceeding 15 years. Fla. Stat. §§ 893.13(1)(a); 775.082(3)(d).

         Defendant now asserts that there was plain error in his case because he had no violent felony convictions and he did not have three drug convictions for which he received an actual sentence in excess of one year.

         II.

         The motion will be dismissed because the Court has no jurisdiction to entertain it. Alternatively, the motion will be denied because there was no error, plain or otherwise, in defendant's case.

         A. Subject Matter Jurisdiction

         The Court has an obligation to determine if it otherwise has authority to consider defendant's request. The authority of the Court is an issue of law. United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002), cert. denied, 539 U.S. 951 (2003).Because defendant is proceeding pro se, the Court must construe his request for post-conviction relief liberally, United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997), and consider all possible bases of authority even though none may be identified by defendant, United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). The Court has no inherent power to correct an illegal sentence, but rather must look to the specific parameters of federal statutes and the Federal Rules of Criminal Procedure. Diaz-Clark, 292 F.3d at 1315.

         The Court finds no authority to change or vacate the sentence.Nothing in Rule 52(b) provides the Court with ...


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