United States District Court, M.D. Florida, Tampa Division
GLOVER A. YAWN, JR.,
UNITED STATES OF AMERICA.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
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.
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. ##
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
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).
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).
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).
now timely seeks post-conviction relief under 28 U.S.C.
§ 2255. The Motion is ripe for review.
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.”).
Serious Drug Offenses
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).
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