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Yawn v. United States

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

January 15, 2020

GLOVER A. YAWN, JR.,
v.
UNITED STATES OF AMERICA.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Glover A. Yawn, Jr.'s 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 72), which was filed on October 29, 2019. The United States of America responded on December 3, 2019. (Civ. Doc. # 5). Yawn failed to file a reply by the deadline. For the reasons that follow, the Motion is denied.

         I. Background

         On August 17, 2016, Yawn was charged in a one-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Crim. Doc. # 1). On December 1, 2016, Yawn pled guilty. (Crim. Doc. ## 35-38).

         In the presentence investigation report, Probation determined that Yawn was an armed career criminal under the Armed Career Criminal Act (ACCA). (Crim. Doc. # 45 at 6). Probation relied on four of Yawn's previous felony convictions in making this determination: battery on a detained person; felony battery; possession with intent to sell, manufacture, or deliver cocaine in violation of Section 893.13(1), Fla. Stat.; and possession with intent to sell, sale, or delivery of cocaine within 1000 feet of a place of worship in violation of Section 893.13(1). (Id.; Civ. Doc. # 5-1). Probation calculated that Yawn had a minimum sentence of fifteen years' imprisonment and a guidelines range of 180 to 210 months' imprisonment. (Crim. Doc. # 45 at 23-24).

         In a sentencing memorandum and at sentencing, counsel for Yawn challenged her client's designation as an armed career criminal. Although Yawn maintained that his two prior convictions for battery were not violent felonies, he did not argue that his drug convictions failed to qualify as “serious drug offenses” under the ACCA. (Crim. Doc. # 47; Crim. Doc. # 66 at 6-8). At sentencing, the United States acknowledged that Yawn's conviction for battery on a detained person was not a violent felony but argued that the felony battery conviction was a violent felony. (Crim. Doc. # 66 at 8).

         After oral argument, the Court continued the sentencing to further review the question of whether the felony battery conviction was a violent felony. (Id. at 24-25). On the second day of the sentencing, the Court rejected Yawn's argument and held that felony battery was a violent felony. (Crim. Doc. # 67 at 16-17). Because Yawn had three prior convictions for violent felonies and serious drug offenses, the Court concluded that Yawn was an armed career criminal under the ACCA and sentenced him to the mandatory minimum of 180 months' imprisonment. (Crim. Doc. ## 51-52).

         Yawn directly appealed his sentence, arguing that he should not have been classified as an armed career criminal because his felony battery conviction was not a violent felony. (Crim. Doc. ## 54, 69). The Eleventh Circuit affirmed. (Crim. Doc. ## 69-70). The Supreme Court denied Yawn's petition for writ of certiorari on November 5, 2018. (Doc. # 71).

         Yawn now timely seeks post-conviction relief under 28 U.S.C. § 2255. The Motion is ripe for review.

         II. Discussion

         In his Motion, Yawn advances several grounds for post-conviction relief. (Civ. Doc. # 1). Yawn bears the burden of proving that he is entitled to relief under Section 2255. See Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015)(“[W]e note that Rivers bears the burden to prove the claims in his § 2255 motion.”).

         A. Serious Drug Offenses

         First, Yawn argues that his two prior drug convictions under Florida Statute § 893.13(1) should not qualify as “serious drug offenses” under the ACCA. (Civ. Doc. # 1 at 6-8).

         This argument is foreclosed by precedent. In United States v. Smith, the Eleventh Circuit held that a conviction for violation of Section 893.13(1) qualified as a “serious drug ...


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