Myers v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

WILLIAM BRIAN MYERS,

Petitioner,

vs. Case No.: 5:18-cv-171-Oc-39PRL

5:16-cr-32-Oc-32PRL

UNITED STATES OF AMERICA,

Respondent.

ORDER

This case is before the Court on Petitioner William Brian Myers’s Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. 1, § 2255 Motion).1

Myers claims that his attorney gave ineffective assistance in relation to his decision to

plead guilty and sentencing. The United States filed a response in opposition. (Civ. Doc.

16, Response). Myers also filed a reply brief, in which he claims he is entitled to a reduced

sentence under the First Step Act of 2018 and the Eighth Amendment. (Civ. Doc. 27,

Reply). The § 2255 Motion is ripe for a decision.

Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255

Proceedings, the Court has determined that a hearing is not necessary to resolve the

merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an

evidentiary hearing on a § 2255 motion is not required when the petitioner asserts

1 Citations to the record in the underlying criminal case, United States v. William Brian

Myers, No. 5:16-cr-32-Oc-32PRL, will be denoted “Crim. Doc. __.” Citations to the record

in the civil 28 U.S.C. § 2255 case, No. 5:18-cv-171-Oc-39PRL, will be denoted “Civ. Doc.

__.”

allegations that are affirmatively contradicted by the record or patently frivolous, or if in

assuming the facts that he alleges are true, he still would not be entitled to any relief). For

the reasons set forth below, Myers’s § 2255 Motion is due to be denied.

I. Background

On September 21, 2016, a federal grand jury in the Middle District of Florida

returned a one-count indictment against Myers. (Crim. Doc. 1, Indictment). The Indictment

alleged that beginning on an unknown date (but no later than sometime in September

2015), and continuing through March 10, 2016, or so, Myers conspired with other

individuals to distribute and to possess with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), and 846. On

December 13, 2016, Myers signed a written plea agreement in which he agreed to plead

guilty to the charge. (Crim. Doc. 15, Plea Agreement). About a month later, on January 10,

2017, Myers formally pled guilty in open court pursuant to the plea agreement. (Civ. Doc.

16-1, Plea Transcript). Myers admitted that he willfully joined a plan to distribute a

controlled substance, that the object of the plan was to distribute or possess with intent to

distribute 50 grams or more of methamphetamine, and that he knew the unlawful purpose

of the plan when he joined it. Plea Agreement at 20; Plea Tr. at 19-20. He further admitted

that he sold 21.7 grams of methamphetamine to a cooperating defendant in February

2016, and that he sold a total of 259.6 grams of methamphetamine to an undercover officer

on three occasions between February 29 and March 9, 2016, for an overall total of 281.3

grams. Plea Agreement at 21.

The Magistrate Judge who presided over the change-of-plea colloquy

recommended “that the guilty plea was knowledgeable and voluntary and that the offense

charged is supported by an independent basis in fact containing each of the essential

elements of such offense.” (Crim. Doc. 19, Report and Recommendation Concerning Plea

of Guilty). Without objection, the Court accepted Myers’s guilty plea and adjudicated him

accordingly. (Crim. Doc. 21, Acceptance of Guilty Plea).

According to the final Presentence Investigation Report (PSR), Myers’s advisory

sentencing range under the United States Sentencing Guidelines was between 151 and

188 months in prison, based on a total offense level of 29 and a Criminal History Category

of VI. (Crim. Doc. 25, PSR at ¶ 108).2 As it turned out, the 281.3 grams of

methamphetamine that Myers sold “had a purity level of between 97.1% and 100%,”

Response at 3, so the PSR held Myers “accountable for 275 grams of Methamphetamine

(actual),” PSR at ¶ 24. Thus, Myers started with a base offense level of 32 under U.S.S.G.

§ 2D1.1(c)(4) because the offense involved at least 150 grams but less than 500 grams of

actual methamphetamine. PSR at ¶ 24; U.S.S.G. § 2D1.1(c)(4) (2016). Myers received a

three-level reduction for acceptance of responsibility under U.S.S.G. §§ 3E1.1(a) and (b),

reducing his total offense level to 29. PSR at ¶¶ 29-32. Because the parties had no

outstanding objections to the final PSR, the Court adopted its calculation of the advisory

sentencing range. (Crim. Doc. 32, Sentencing Transcript at 3-4). Additionally, the United

States moved for a four-level reduction under U.S.S.G. § 5K1.1 to recognize that Myers

had provided substantial assistance, “which resulted in one of his co-conspirators pleading

guilty.” (Crim. Doc. 27, Substantial Assistance Motion at 1). The Court granted the

2 The initial PSR would have imposed the career offender enhancement and given

Myers a two-level enhancement for maintaining a drug premises. (Crim. Doc. 22, Initial

PSR at ¶¶ 25, 30). However, defense counsel successfully objected to those

enhancements before the Probation Officer, who removed them from the final PSR (Crim.

Doc. 25).

Substantial Assistance Motion, which effectively reduced Myers’s total offense level to 25

and his advisory guidelines range to between 110 and 137 months in prison. Sentencing

Tr. at 5. The Court ultimately sentenced Myers to the low end of the guidelines range –

110 months in prison – followed by a three-year term of supervised release. Id. at 19;

(Crim. Doc. 29, Judgment).

Myers did not appeal the sentence. As such, his conviction and sentence became

final on April 11, 2017, fourteen days after the Court entered judgment, when time expired

to file a notice of appeal. Adams v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir.

1999). On April 4, 2018, he timely filed the instant § 2255 Motion. See § 2255 Motion at

13. Myers claims that his court-appointed attorney, Assistant Federal Public Defender

Mary Mills, gave ineffective assistance by failing to obtain or to require the government to

present the results of the drug purity analysis.

II. Discussion

Under Title 28, United States Code, Section 2255, a person in federal custody may

move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral

challenges on four specific grounds: (1) the imposed sentence was in violation of the

Constitution or laws of the United States; (2) the court did not have jurisdiction to impose

the sentence; (3) the imposed sentence exceeded the maximum authorized by law; or (4)

the imposed sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008).

Only jurisdictional claims, constitutional claims, and claims of error that are so

fundamentally defective as to cause a complete miscarriage of justice will warrant relief

through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979). A

petitioner’s challenge to his sentence based on a Sixth Amendment claim of ineffective

assistance of counsel is normally considered on collateral review. United States v. Teague,

953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).

To succeed on a claim of ineffective assistance of counsel, a petitioner must show

both (1) that counsel’s performance was deficient, and (2) that as a result of counsel’s

deficient performance, the petitioner suffered prejudice. Strickland v. Washington, 466

U.S. 668, 687 (1984). In determining whether counsel performed deficiently, the Court

adheres to the standard of reasonably effective assistance. Weeks v. Jones, 26 F.3d 1030,

1036 (11th Cir. 1994). The petitioner must show, in light of all the circumstances, that

counsel’s performance fell outside the “wide range of professionally competent

assistance.” Id. To show that counsel’s deficient performance prejudiced the defendant,

the petitioner must show that there is a reasonable probability that, but for counsel’s error,

the result of the proceeding would have been different. Id. at 1036-37 (citing Strickland,

466 U.S. at 694). A “reasonable probability” is a probability sufficient to undermine

confidence in the outcome. Strickland, 466 U.S. at 694. In determining whether a petitioner

has met the two prongs of deficient performance and prejudice, the Court considers the

totality of the evidence. Id. at 695. However, because both prongs are necessary, “there

is no reason for a court… to approach the inquiry in the same order or even to address

both components of the inquiry if the defendant makes an insufficient showing on one.” Id.

at 697; see also Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need

not discuss the performance deficiency component of [petitioner’s] ineffective assistance

claim because failure to satisfy the prejudice component is dispositive.”).

A. The § 2255 Motion: Whether counsel gave ineffective assistance by

failing to obtain the results of the drug purity analysis

In the § 2255 Motion, Myers claims that counsel gave ineffective assistance

because “[t]oxicology reports were never presented and my attorney never objected to …

that fact.” § 2255 Motion at 4. By “toxicology reports,” Myers is presumably referring to the

results of the drug purity analysis, which revealed that the methamphetamine Myers sold

“had a purity level of between 97.1% and 100%.” Response at 3. Because the offense

level was based on the weight of pure methamphetamine, and the purity level was so high,

Myers’s total offense level was six levels higher compared to what it would have been if

the crime had involved a mixture or substance of methamphetamine. Compare U.S.S.G.

§ 2D1.1(c)(4) (2016) with § 2D1.1(c)(7) (2016). According to defense counsel, Mary Mills,

a discovery “snafu” prevented Myers from receiving a copy of the drug purity analysis until

after he had already pled guilty. Sentencing Tr. at 8. Before pleading guilty, counsel had

estimated Myers’s guidelines range based on the assumption that the methamphetamine

was a mixture or substance, but of course, the drug purity analysis upended that

assumption. Id. Whereas counsel had estimated that Myers’s base offense level would be

26, his base offense level ended up being 32. See id.

The precise nature of Myers’s claim is difficult to discern because it consists of only

two sentences. The first sentence simply states that “[t]oxicology reports were never

presented and my attorney never objected to that fact,” and the second sentence states

that these facts support an ineffective assistance of counsel argument. § 2255 Motion at

4. It is not clear whether Myers is asserting that counsel gave ineffective assistance in

relation to his decision to plead guilty, in connection with sentencing, or both. One

interpretation of the claim is that counsel gave ineffective assistance in pre-plea

discussions by estimating Myers’s guidelines range without knowing the results of the drug

analysis, such that Myers’s decision to plead guilty was misinformed. Another

interpretation is that counsel gave ineffective assistance at sentencing by failing to demand

that the government present the drug analysis report as proof of the purity level of the

methamphetamine. Myers could have shed light on the nature of his claim by stating what

remedy he sought (e.g., withdrawal of the guilty plea or resentencing), but he left that

portion of the § 2255 form blank. § 2255 Motion at 13. Thus, the Court is left to guess at

the nature of Myers’s claim. The Court is not required to do so, because vague and

conclusory allegations, unsupported by specifics, do not even warrant an evidentiary

hearing, let alone habeas relief. Wintrhop-Redin v. United States, 767 F.3d 1210, 1216

(11th Cir. 2014); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991). Nevertheless,

the Court finds that the claim fails on the merits under either interpretation.

“Before deciding whether to plead guilty, a defendant is entitled to the effective

assistance of competent counsel.” Padilla v. Kentucky, 559 U.S. 356, 364 (2010)

(quotation marks omitted). Thus, “[t]he Supreme Court has long recognized that

Strickland’s two-part inquiry applies to ineffective assistance of counsel arising out of the

plea process.” Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (citing Hill v.

Lockhart, 474 U.S. 52, 57 (1985)). As with any other ineffective assistance claim, a

petitioner must demonstrate that counsel’s performance was deficient and that, but for

counsel’s deficient performance, there is a reasonable probability the result of the

proceeding would have been different. Hill, 474 U.S. at 57 (citing Strickland, 466 U.S. at

687-88, 694). In this context, where a petitioner claims that counsel’s mis-advice caused

him to plead guilty, demonstrating prejudice means “show[ing] that there is a reasonable

probability that, but for counsel's errors, he would not have pleaded guilty and would have

insisted on going to trial.” Id. at 59. Importantly, however, “an erroneous strategic prediction

about the outcome of a [proceeding] is not necessarily deficient performance.” Lafler v.

Cooper, 566 U.S. 156, 174 (2012).

To the extent Myers claims that counsel’s failure to obtain the results of the drug

purity analysis affected his decision to plead guilty, he has not established that counsel’s

performance was deficient. There is a “strong presumption” that counsel’s actions fell

within the wide range of constitutionally adequate assistance, and a petitioner must

“establish that no competent counsel would have taken the [challenged] action.” Khan v.

United States, 928 F.3d 1264, 1272 (11th Cir. 2019) (quoting Chandler v. United States,

218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc)). Myers’s conclusory allegations have

not overcome the “strong presumption” that counsel’s advice was reasonable.

Before Myers pled guilty, Ms. Mills advised him of his estimated guidelines range

based on the assumption that the methamphetamine was a mixture or substance rather

than pure methamphetamine. (Civ. Doc. 16-3, Mills’s Affidavit). That assumption turned

out to be incorrect, but that does not mean counsel’s assumption was unreasonable. “A

fair assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland,

466 U.S. at 689. When an attorney gives her client an estimate of the client’s guidelines

exposure, the attorney often must make that estimate based on incomplete information.

Inevitably then, the attorney must fill in the gaps by making assumptions, and some of

those assumptions may prove to be wrong. But that alone does not make counsel’s

performance ineffective, because “an erroneous strategic prediction about the outcome of

a [proceeding] is not necessarily deficient performance.” Lafler, 566 U.S. at 174. Beyond

what has already been stated, all the Court knows is that, because of a discovery “snafu,”

Myers’s counsel did not have a copy of the drug analysis report when she advised Myers

of his estimated guidelines range prior to pleading guilty. Sentencing Tr. at 8; see also

Mills’s Affidvait. It is unclear whose fault this was, or if it was anyone’s fault at all. It is not

even clear whether defense counsel was aware of the existence of the drug analysis report

at the time she advised Myers about his estimated guidelines range. Thus, the record does

not indicate that it was objectively unreasonable for Ms. Mills to advise Myers of his

estimated guidelines range without knowing the results of the drug purity analysis. And

“‘[w]here, as here, the evidence does not clearly explain what happened ... the party with

the burden loses.’” Beeman v. United States, 871 F.3d 1215, 1225 (11th Cir. 2017)

(quoting Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001)). Because Myers has the

burden of proving that counsel gave ineffective assistance, Chandler, 218 F.3d at 1313

(citations omitted), and because there is a “strong presumption” that counsel’s

performance was reasonable, id. at 1314 (citations omitted), Myers’s conclusory

allegations have failed to establish that counsel’s pre-plea advice fell outside the wide

range of constitutionally competent assistance.

Moreover, there is not a reasonable probability that Myers would have rejected the

Plea Agreement and proceeded to trial even if he had known he would be held accountable

for 275 grams of pure methamphetamine. For starters, when Myers pled guilty he

acknowledged that the maximum penalty was 40 years in prison. Plea Agreement at 2;

Plea Tr. at 10-11. Myers recognized that the Court had authority to impose any sentence

up to and including the maximum term of imprisonment, that the sentence ultimately

imposed could be different from any estimate provided by his attorney, and that even if the

sentence was more severe than expected he would still be bound by his guilty plea. Plea

Tr. at 12-13. Myers maintained that he still wished to plead guilty. See id. at 13-14, 20-21.

“Solemn declarations in open court,” such as the ones Myers made when he pled guilty,

“carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74

(1977). Because Myers knowingly and voluntarily assumed the risk that he would be

sentenced to as much as 40 years in prison, and that any guidelines estimate provided by

his attorney could be inaccurate, there is not a reasonable likelihood he would have

rejected the Plea Agreement and insisted on going to trial had he known the results of the

drug purity analysis.

Additionally, this very issue was covered at the sentencing hearing, where it was

made clear that Myers wished to maintain his guilty plea even after he learned the results

of the drug purity analysis. The following discussion occurred at sentencing:

MS. MILLS: …. And then when we get to this case, Your Honor, the

argument that I made in my memorandum, it’s one that I’ve

made before. Mr. Myers received a sentence in this case which

is on the base offense level which is six levels higher than

someone who would be sentenced for a mixture of substance.

And when I was going over this with him – this is something

that I do want to put on the record, and I’ve discussed it with

Mr. Hamilton [the prosecutor]. I had originally assumed that he

was going to be much lower than this because I thought that it

was a mixture of substance and he would start at base offense

level 26.

It came as a surprise to me, again, because I had not gotten

the drug report. And it was certainly of no fault to Mr. Hamilton.

It was sort of a discovery snafu.

And when we got the drug report, it was a surprise to me – and

notably a surprise to Mr. Myers – that the mixture was not a

mixture of substance. The purity was much higher.

And I have discussed that with Mr. Myers. And he wants to

proceed with his sentencing.

I told him, I said, you know, I can withdraw the plea because

we weren’t aware that the base offense level was going to be

so high. And I said, We can make a motion to do that.

And he didn’t want to do that, Your Honor. He wanted to

proceed today because it is what it is.

Sentencing Tr. at 8-9 (emphasis added). A short while later, the Court gave Myers the

opportunity to speak in allocution. Myers stated that he wished “to accept the

consequences of my one action that I will regret for the rest of my life,” commended his

counsel “on a job very well done,” and asked the Court for leniency. Id. at 10-11. Because

Myers declined to seek withdrawal of his guilty plea even after he learned the results of

the drug purity analysis, the record affirmatively refutes any suggestion that knowing the

results of the drug analysis before he pled guilty would have altered his decision.

Accordingly, to the extent Myers claims that counsel gave ineffective assistance in

connection with his decision to plead guilty, the record affirmatively refutes that claim.

To the extent Myers argues that counsel gave ineffective assistance at sentencing

by failing to demand that the government introduce the drug report as proof of the

methamphetamine’s purity level, that claim lacks merit as well. As the government stated,

the drug purity analysis revealed that the methamphetamine sold by Myers had a purity

level of between 97.1% and 100%, Response at 3, resulting in Myers being held

accountable for 275 grams of actual methamphetamine, PSR at ¶ 24. At sentencing, Myers

did not contest the results of the drug purity analysis or object to the weight of actual

methamphetamine attributed to him. Rather, Myers stated that he accepted responsibility

for his actions and praised his counsel “on a job very well done.” Sentencing Tr. at 10.

Myers fails to explain why it was unreasonable for counsel not to demand that the drug

report be entered into evidence, or how not doing so was prejudicial, especially when he

did not dispute the contents of the report or the accuracy of the drug weight.

Therefore, regardless of how one interprets Myers’s ineffective assistance claim,

he has failed to establish that counsel’s performance was either deficient or prejudicial

under the standards of Strickland v. Washington and Hill v. Lockhart. As such, relief on the

§ 2255 Motion is due to be denied.

B. Myers’s Reply Brief: Whether Myers’s sentence should be reduced

pursuant to The First Step Act or the Eighth Amendment

In his Reply brief (Civ. Doc. 27), Myers claims that he is entitled to a sentence

reduction under The First Step Act of 2018, Pub. L. No. 115–391, 132 Stat. 5194 (2018),

and that his 110-month prison sentence is cruel and unusual, in violation of the Eighth

Amendment to the United States Constitution. However, Myers did not obtain leave of

Court to raise these two claims for relief. New claims raised for the first time in a reply brief

are deemed waived and may not be raised without leave of Court. Oliveiri v. United States,

717 F. App’x 966, 967 (11th Cir. 2018); Snyder v. United States, 263 F. App’x 778, 779-

80 & n.2 (11th Cir. 2008). Because Myers neither requested nor obtained leave of Court

to add these two claims, they are procedurally barred.

Nevertheless, these claims lack merit. First, Myers asserts that the First Step Act

“made substantive changes to … 21 U.S.C. 841(a) and 841(b)” and that “those changes

effect [sic] Petitioner based on the fact that the change happened after Petitioner was

sentenced.” Reply at 4. However, Myers is not entitled to relief under The First Step Act of

2018 because that law did not retroactively reduce sentences for defendants, like Myers,

who were convicted of an offense involving methamphetamine. Section 404 of the First

Step Act did make retroactive the provisions of the Fair Sentencing Act of 2010, which

sought to reduce the sentencing disparity between crack cocaine and powder cocaine

offenses by raising the quantity of crack cocaine necessary to trigger the 5- and 10-year

mandatory minimum sentences under 21 U.S.C. §§ 841(b)(1)(A) and (b)(1)(B). United

States v. Carter, –– F. App’x ––, 2019 WL 5295132, at *3 (11th Cir. Oct. 18, 2019). Myers

cannot benefit from these changes because he was not convicted of a crack cocaine

offense, and in any event, he was sentenced after the effective date of the Fair Sentencing

Act. The First Step Act also reduced the mandatory minimum sentences for repeat drug

offenders and made the imposition of such enhanced minimum sentences more difficult

by requiring a prior conviction for “a serious drug felony” instead of any “felony drug

offense.” First Step Act, § 401. However, the First Step Act did not make § 401’s changes

retroactive. But even if they were applied retroactively, § 401 still would not benefit Myers

because he was not subjected to any recidivist enhancement under 21 U.S.C. §§

841(b)(1)(B). Myers does not identify any other provision of the First Step Act that could

conceivably benefit him. Indeed, the Court appointed the Office of the Federal Public

Defender to review Myers’s case to determine if he qualified for relief under The First Step

Act, but the Federal Public Defender recently notified the Court that he did not. (Crim. Doc.

40, Notice from the Federal Public Defender). Accordingly, Myers’s claim for relief under

The First Step Act fails.

Myers’s claim for relief under the Eighth Amendment fares no better. For one, this

claim is procedurally defaulted because Myers could have raised the argument on direct

appeal but he failed to do so. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004).3

But the claim also fails on the merits. The Eighth Amendment to the United States

Constitution prohibits the infliction of “cruel and unusual punishments.” U.S. Const.,

amend. VIII. “The Eighth Amendment’s prohibition of cruel and unusual punishments

‘contains a narrow proportionality principle that applies to noncapital sentences.’” United

States v. Carthen, 906 F.3d 1315, 1322 (11th Cir. 2018) (quoting United States v. Johnson,

451 F.3d 1239, 1242 (11th Cir. 2006)). “Defendants arguing that their sentences are

constitutionally excessive must make a threshold showing of gross disproportionality.” Id.

(citing Johnson, 451 F.3d at 1243). If the defendant satisfies that burden, the Court then

considers “sentences imposed on others convicted in the same jurisdiction and the

sentences imposed for commission of the same crime in other jurisdictions.” Johnson, 451

F.3d at 1243. In general, a sentence imposed within the statutory limits does not violate

the Eighth Amendment. Id. “Successful Eighth Amendment challenges in non-capital

cases are ‘exceedingly rare;’ so rare, in fact, that never have we concluded that an adult’s

non-capital sentence violates the Eighth Amendment.” United States v. Green, 754 F.

App'x 943, 944 (11th Cir.) (quoting United States v. Suarez, 893 F.3d 1330, 1336 (11th

Cir. 2018)), cert. denied, 139 S. Ct. 2730 (2019).

Myers has failed to make the threshold showing that his sentence was grossly

disproportionate. His sentence of 110 months in prison, followed by a three-year term of

supervised release, was not grossly disproportionate to the offense, which involved

conspiring to distribute over 250 grams of methamphetamine. The sentence was far closer

3 Moreover, the sentence-appeal waiver in Myers’s Plea Agreement contained an

exception for Eighth Amendment claims, Plea Agreement at 15-16, so the appeal-waiver

would have been no bar.

to the 5-year mandatory minimum sentence than the 40-year maximum sentence

applicable under 21 U.S.C. § 841(b)(1)(B), and it represented the low end of a guidelines

range that had already been lowered pursuant to a substantial assistance reduction.

Indeed, the Eleventh Circuit Court of Appeals has rejected Eighth Amendment challenges

to the penalty range under § 841(b)(1)(B), e.g., United States v. Holmes, 838 F.2d 1175,

1178-79 (11th Cir. 1988), and the Eleventh Circuit has specifically rejected Eighth

Amendment challenges to sentences harsher than Myers’s for roughly similar conduct,

Green, 754 F. App’x at 944-45 (affirming aggregate sentence of 230 months in prison

based on convictions for possession with intent to distribute less than 50 grams of

methamphetamine and conspiracy to possess with intent to distribute less than 50

kilograms of marijuana); United States v. Williams, 618 F. App’x 541, 544 (11th Cir. 2015)

(affirming sentence of 120 months in prison for defendant convicted of conspiracy to

possess with intent to distribute 50 grams or more of methamphetamine). Distributing

illegal drugs is “a serious crime which is widely condemned by society,” Holmes, 838 F.2d

at 1178, 275 grams of actual methamphetamine is not an insubstantial amount, and Myers

had an “atrocious prior record” that garnered 25 criminal history points, Sentencing Tr. at

15, 16. Because Myers’s 110-month prison sentence was not grossly disproportionate to

the crime, his Eighth Amendment claim must fail.

III. Conclusion

The Court has considered Myers’s claims on the merits and finds that none of his

arguments warrants relief under 28 U.S.C. § 2255. Accordingly, it is hereby ORDERED:

1. Petitioner William Brian Myers’s Motion Under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence (Civ. Doc. 1) is DENIED.

2. The Clerk should enter judgment in favor of the United States and against Myers,

and close the file.

3. If Myers appeals the denial of his motion, the Court denies a certificate of

appealability (COA).4 Because this Court has determined that a COA is not

warranted, the Clerk shall terminate from the pending motions report any motion to

proceed on appeal as a pauper that may be filed in this case. Such termination shall

serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida this 24th day of February, 2020.

BRIAN J. □□

United States District Judge

Ic 19

Copies:

Counsel of record

Petitioner

4 This Court should issue a COA only if a petitioner makes “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial

showing, Petitioner “must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues

presented were ‘adequate to deserve encouragement to proceed further,” Miller-El v.

Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)). Upon due consideration, this Court finds that a COA is not warranted.

16