Brown v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CEDRIC LAVAR BROWN1,

Petitioner,

vs. Case No.: 3:17-cv-529-J-32JRK

3:14-cr-101-J-32JRK

UNITED STATES OF AMERICA,

Respondent.

/

ORDER

This case is before the Court on Petitioner Cedric Lavar Brown’s Motion

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1)

and Motion to Supplement (Civ. Doc. 5).2 In the § 2255 Motion, Petitioner

alleges that the Court wrongly sentenced him under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e), and that appellate counsel gave

ineffective assistance. In the Motion to Supplement, Petitioner seeks to add a

claim that the Court lacked subject matter jurisdiction over the case. The

United States responded in opposition to both motions. (Civ. Docs. 4, 7).

1 Petitioner’s middle name is spelled “Levar” on the criminal docket but “Lavar”

on the civil docket.

2 Citations to the record in the criminal case, United States vs. Cedric Levar

Brown, No. 3:14-cr-101-J-32JRK, will be denoted “Crim. Doc. __.” Citations to the

record in the civil § 2255 case, No. 3:17-cv-529-J-32JRK, will be denoted “Civ. Doc. __.”

The Court stayed this case pending the Supreme Court’s decision in

Shular v. United States, 140 S. Ct. 779 (2020). Afterward, the Court instructed

the parties to submit supplemental briefs, which the Court has considered. (Civ.

Doc. 14, United States’ Supp. Brief, Civ. Doc. 15, Petitioner’s Supp. Brief). Thus,

the case is ripe for a decision.

Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the

Court has determined that an evidentiary hearing is not necessary to decide the

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

evidentiary hearing 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 any

relief). For the reasons below, Petitioner’s § 2255 Motion, as supplemented, is

due to be denied.

I. Background

On May 28, 2014, a federal grand jury indicted Petitioner on one count of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e). (Crim. Doc. 14, Indictment). A few months later, Petitioner pleaded

guilty to the charge without a plea agreement. (Crim. Doc. 35, Notice of

Maximum Penalty, Elements of the Offense, and Factual Basis; Crim. Doc. 73,

Change-of-Plea Transcript). Petitioner admitted that, despite being a convicted

felon, in May 2014 he possessed a Jiminez Arms 9 millimeter pistol and sold it

to a confidential informant. (Crim. Doc. 73 at 23–24). Petitioner further

admitted that the gun had been “manufactured in Nevada and necessarily

traveled in interstate commerce by its presence in Duval County, Florida, on or

about May 5th, 201[4].” (Id. at 24); (see also Crim. Doc. 35 at 3). The Magistrate

Judge who presided over the plea colloquy reported that “[a]fter cautioning and

examining the Defendant under oath concerning each of the subjects mentioned

in Rule 11, I determined 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. 36).

Without objection, the Court accepted Petitioner’s guilty plea and adjudicated

him accordingly. (Crim. Doc. 38).

Petitioner was initially scheduled to be sentenced on August 19, 2015, but

at Petitioner’s request, the Court continued the sentencing hearing to give him

an opportunity to cooperate with state authorities regarding an unrelated

homicide investigation. (See Crim. Doc. 74, Sentencing Transcript Vol. I). The

Court and the parties reconvened on February 23, 2016. (Crim. Doc. 78,

Sentencing Transcript, Vol. II). Counsel conceded that Petitioner was going to

qualify for an enhanced 15-year mandatory minimum sentence under the

ACCA, 18 U.S.C. § 924(e), because he had three prior convictions for a serious

drug offense. (Id. at 12–13). However, at Petitioner’s request, the Court again

continued the sentencing hearing to give Petitioner an opportunity to obtain a

substantial assistance reduction based on third-party cooperation.

Ultimately, neither Petitioner’s efforts nor third-party cooperation

resulted in the United States moving for a substantial assistance reduction. The

case eventually proceeded to sentencing on June 22, 2016. (Crim. Doc. 75,

Sentencing Transcript Vol. III). According to the Presentence Investigation

Report (PSR), Petitioner was subject to a 15-year mandatory minimum sentence

under the ACCA based on three prior convictions in Florida for the sale or

delivery of cocaine. (Crim. Doc. 62, PSR at ¶ 23). Upon review of certified records

of the prior convictions, the Court determined that Petitioner qualified for the

ACCA enhancement. (Crim. Doc. 75 at 7–12). Although the guidelines

recommended a sentence between 188 and 235 months in prison (Crim. Doc. 62

at ¶ 90), the Court varied below the guidelines range and sentenced Petitioner

to the mandatory minimum term of 180 months. (Crim. Doc. 75 at 27; Crim.

Doc. 65, Judgment).

Petitioner filed a notice of appeal from the judgment. (Crim. Doc. 67). On

appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and moved to withdraw. United States v. Brown, No. 16–14708 (11th

Cir.), Dkt. Entry of Oct. 3, 2016. In response, Petitioner filed a pro se brief in

which he argued that his prior drug convictions did not qualify as ACCA

predicates because the statute of conviction was broader than the ACCA’s

definition of a serious drug offense. Id., Dkt. Entry of Dec. 12, 2016. The

Eleventh Circuit Court of Appeals affirmed Petitioner’s conviction and

sentence. United States v. Brown, 682 F. App’x 820 (11th Cir. 2017); (Crim. Doc.

82). The court explained: “Our independent review of the entire record reveals

that counsel’s assessment of the relative merit of the appeal is correct. Because

an independent examination of the entire record reveals no arguable issue of

merit, counsel’s motion to withdraw is GRANTED, and Brown’s conviction and

sentence are AFFIRMED.” Brown, 682 F. App’x at 820.

Petitioner did not seek certiorari review from the Supreme Court. This §

2255 Motion followed.

II. Applicable Law

A. General Principles and Ineffective Assistance of Counsel

Under 28 U.S.C. § 2255, a person in federal custody may move to vacate,

set aside, or correct his sentence. Section 2255 authorizes a district court to

grant relief on four grounds: (1) the sentence was imposed in violation of the

Constitution or laws of the United States; (2) the court lacked jurisdiction to

impose the sentence; (3) the sentence exceeds the maximum authorized by law;

or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C § 2255(a).

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

fundamental 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); Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).

“[A] collateral attack is the preferred vehicle for an ineffective-assistance

claim.” United States v. Padgett, 917 F.3d 1312, 1318 (11th Cir. 2019).

To establish ineffective assistance of counsel, a § 2255 petitioner must

show both: (1) that his counsel’s performance was constitutionally deficient, and

(2) that counsel’s deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Martin v. United States, 949 F.3d 662,

667 (11th Cir. 2020). In determining whether counsel was deficient, “[t]he

standard for effective assistance of counsel is reasonableness, not perfection.”

Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (citing Strickland, 466

U.S. at 687). “In the light of the ‘strong presumption’ that counsel's actions [fell]

within the wide range of constitutionally adequate assistance, a movant ‘must

establish that no competent counsel would have taken the [challenged] action.’”

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

United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc)), cert.

dismissed, 140 S. Ct. 339 (2019). To demonstrate prejudice, the petitioner must

show a reasonable likelihood that the result of the proceeding would have been

different but for counsel’s error. Martin, 949 F.3d at 667 (citing Padilla v.

Kentucky, 559 U.S. 356, 366 (2010)). The Court considers the totality of the

evidence in determining whether a petitioner has established deficient

performance and prejudice. Strickland, 466 U.S. 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.

B. The Armed Career Criminal Act (ACCA)

Under the ACCA, any person who violates 18 U.S.C. § 922(g) and who has

three or more prior convictions “for a violent felony or a serious drug offense, or

both, committed on occasions different from one another” is subject to a 15-year

mandatory minimum prison sentence. 18 U.S.C. § 924(e)(1). The term “serious

drug offense” means:

(i) an offense under the Controlled Substances Act (21

U.S.C. 801 et seq.), the Controlled Substances Import

and Export Act (21 U.S.C. 951 et seq.), or chapter 705

of title 46 for which a maximum term of imprisonment

of ten years or more is prescribed by law; or

(ii) an offense under State law, involving

manufacturing, distributing, or possessing with intent

to manufacture or distribute, a controlled substance (as

defined in section 102 of the Controlled Substances Act

(21 U.S.C. 802)), for which a maximum term of

imprisonment of ten years or more is prescribed by law.

Id., § 924(e)(2)(A).

“In determining whether a conviction qualifies as a serious drug offense,

courts generally apply a categorical approach, looking ‘only to the fact of

conviction and the statutory definition of the prior offense, instead of the actual

facts underlying the defendant’s prior conviction.’” United States v. Simmons,

820 F. App’x 923, 925 (11th Cir. 2020) (quoting United States v. Robinson, 583

F.3d 1292, 1295 (11th Cir. 2009)). If the statute of conviction contains

alternative elements, the sentencing court may consult Shepard-approved3

sources, such as a charging document or the judgment, to discern the nature of

the conviction. Simmons, 820 F. App’x at 925–26.

III. Discussion

A. Grounds One, Two, and Four: The ACCA enhancement

The focus of Petitioner’s § 2255 Motion is challenging the ACCA

enhancement. Grounds One, Two, and Four present variations of the same

argument. In Ground One, he contends that the Court violated his Sixth

Amendment right to a jury trial by counting his three prior convictions for the

sale or delivery of cocaine as ACCA predicates. (Civ. Doc. 1 at 4). Petitioner

claims that the Court “refused to use the categorical approach” and instead

“used the facts of Petitioner’s (3) prior state of Florida drug convictions to

determine that Petitioner was an Armed Career Criminal.” (Id.). In Ground

Two, Petitioner alleges that, in this case, the “categorical approach” requires

the sentencing court to compare the elements of the state offense to the

elements of a generic federal drug trafficking crime. (Id. at 5–6). He alleges that

3 Shepard v. United States, 544 U.S. 13 (2005).

any other approach would render the definition of a serious drug offense void

for vagueness. (Id. at 6). According to Petitioner, his prior convictions are not

ACCA predicates because their elements are broader than those of a generic

federal drug offense. In Ground Four, Petitioner asserts that Eleventh Circuit

precedent is contrary to precedent from the Supreme Court and other circuits

because the Eleventh Circuit has rejected the categorical approach urged by

Petitioner (i.e., comparing the elements of the state offense with the elements

of a generic federal drug trafficking crime). (Id. at 9).

As a preliminary matter, each of these claims are procedurally defaulted

or were resolved against Petitioner on appeal. “Under the procedural default

rule, a defendant generally must advance an available challenge to a criminal

conviction or sentence on direct appeal or else the defendant is barred from

presenting that claim in a § 2255 proceeding.” McKay v. United States, 657 F.3d

1190, 1196 (11th Cir. 2011) (internal quotation marks and citation omitted).

Likewise, it is “long settled that a prisoner is procedurally barred from raising

arguments in a motion to vacate his sentence, 28 U.S.C. § 2255, that he already

raised and that [the court of appeals] rejected in his direct appeal.” Stoufflet v.

United States, 757 F.3d 1236, 1239 (11th Cir. 2014) (citations omitted).

To the extent Petitioner claims that the Court violated his Sixth

Amendment rights by basing the ACCA enhancement on the facts of his prior

drug convictions, he could have advanced that challenge on direct appeal but

failed to do so. Thus, this claim is procedurally defaulted. McKay, 657 F.3d at

1196. To the extent Petitioner claims that the Court failed to properly apply the

categorical approach or that his prior drug convictions do not fit the ACCA’s

definition of a serious drug offense, he did raise these claims on direct appeal in

his pro se brief. Brown, No. 16–14707, Dkt. Entry of Dec. 12, 2016. However,

the Eleventh Circuit Court of Appeals implicitly rejected these arguments when

it found no arguable issues of merit and affirmed his conviction and sentence.

Brown, 682 F. App’x at 820. Thus, these claims may not be relitigated in a §

2255 motion. Stoufflet, 757 F.3d at 1239.

Petitioner’s claims lack merit in any event. In Shular v. United States,

the Supreme Court affirmed a defendant’s ACCA sentence where, like

Petitioner, the contested predicate conviction was under Florida Statutes

Section 893.13(1)(a), which “makes it a crime to ‘sell, manufacture, or deliver,

or possess with intent to sell, manufacture, or deliver, a controlled substance.’”

140 S. Ct. 779, 784 (2020) (quoting Fla. Stat. § 893.13(1)(a)). In doing so, the

Supreme Court held that § 924(e)(2)(A)(ii)’s definition of a serious drug offense

does not call for a comparison to a generic offense. Id. at 782. Rather, the Court

held that “[t]he ‘serious drug offense’ definition requires only that the state

offense involve the conduct specified in the federal statute; it does not require

that the state offense match certain generic offenses.” Id. The Supreme Court

rejected Shular’s argument that, because Section 893.13(1)(a) did not require

the state to prove an element of mens rea regarding the illicit nature of the

controlled substance, the conviction was not a “serious drug offense.” Id. at 787.

Moreover, the Supreme Court held that § 924(e)(2)(A)(ii) was unambiguous

because its “text and context leave no doubt that it refers to an offense involving

the conduct of ‘manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance.’” Id. (emphasis in original);

see also id. at 787–89 (Kavanaugh, J., concurring). In Shular,

[T]he Supreme Court told us two important things about the terms

in this ACCA definition: (1) “the terms in § 924(e)(2)(A)(ii) –

‘manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance’ – are unlikely

names for generic offenses” and instead “[t]hose words undoubtedly

can be used to describe conduct,” and (2) “by speaking of activities

a state-drug offense ‘involves,’ § 924(e)(2)(A)(ii) suggests the

descriptive terms immediately following that word ‘involv[es]’

identify conduct.” Id. at ––––, 140 S. Ct. at 785.

The Supreme Court also clarified that the ACCA's definition of

“serious drug offense” “requires only that the state offense involve

the conduct specified in the federal statute [the ACCA]; it does not

require that the state offense match certain generic

offenses.” Id. at ––––, 140 S. Ct. at 782. The Supreme Court

confirmed that § 924(e)(2)(A)(ii) calls for application of a categorical

approach, but one that determines whether state drug offenses

“involve,”—that is “necessarily requir[e]”—the types of conduct

identified in § 924(e)(2)(A)(ii). Id. at ––––, 140 S. Ct. at 785–86.

United States v. Conage, 976 F.3d 1244, 1252 (11th Cir. 2020).

Shular also confirmed the correctness of the Eleventh Circuit’s earlier

decision in United States v. Smith, which held that it “need not search for the

elements of ‘generic’ definitions of ‘serious drug offense’ and ‘controlled

substance offense’ because these terms are defined by a federal statute and the

Sentencing Guidelines, respectively.” 775 F.3d 1262, 1267 (11th Cir. 2014). The

Smith court concluded that although Florida Statutes Section 893.13(1) does

not contain an element of mens rea regarding the illicit nature of a controlled

substance, it “is both a ‘serious drug offense,’ 18 U.S.C. § 924(e)(2)(A), and a

‘controlled substance offense,’ U.S.S.G. § 4B1.2(b)” because neither term

requires an element of mens rea. Id. at 1268.

The record and the foregoing case law foreclose Petitioner’s arguments.

The record refutes Petitioner’s allegation in Ground One that the Court imposed

the ACCA enhancement based on the facts of his prior drug convictions, in

violation of the Sixth Amendment. Rather, the Court received certified copies

of the charging instruments and judgments pertaining to those convictions,

which established that Petitioner committed the sale or delivery of cocaine on

three separate occasions, in violation of Florida Statutes Section 893.13(1)(a).

(Crim. Doc. 64-1; Crim. Doc. 64-2). The Court reviewed the prior convictions at

the sentencing hearing and concluded, without objection, that they qualified

Petitioner for the ACCA enhancement. (Crim. Doc. 75 at 7–12). As the Supreme

Court and the Eleventh Circuit have recognized, the Sixth Amendment permits

a district judge to find the fact of a prior conviction used to increase the

mandatory minimum sentence. United States v. Phillips, 834 F.3d 1176, 1184

(11th Cir. 2016) (citing Almendarez-Torres v. United States, 523 U.S. 224, 247

(1998)). And, contrary to Petitioner’s arguments in Grounds Two and Four,

precedent from the Supreme Court and the Eleventh Circuit establish that a

conviction for the sale or delivery of cocaine under Florida law is a serious drug

offense under the ACCA. Shular, 140 S. Ct. at 786–87; Smith, 775 F.3d at 1268.

Thus, relief on Grounds One, Two, and Four is due to be denied.

B. Ground Three: Ineffective Assistance

Next, Petitioner claims that appellate counsel gave ineffective assistance

by failing to brief the issues discussed above and those raised in his pro se brief

on direct appeal. (Civ. Doc. 1 at 7). As noted before, appellate counsel filed an

Anders brief before the Eleventh Circuit Court of Appeals. Following an

independent review of the record, the Eleventh Circuit determined that

appellate counsel’s “assessment of the relative merit of the appeal is correct,”

that there was “no arguable issue of merit,” and affirmed Petitioner’s conviction

and sentence. Brown, 682 F. App’x at 820.

As the Eleventh Circuit determined in its opinion, and as this Court

explained with respect to Grounds One, Two, and Four, the arguments that

Petitioner claims counsel should have raised all lack merit.

“[A]ppellate counsel could not have been constitutionally ineffective by failing

to present a meritless claim.” Franks v. GDCP Warden, 975 F.3d 1165, 1171

(11th Cir. 2020). Accordingly, this claim is due to be denied.

C. Motion to Supplement: Subject Matter Jurisdiction

Petitioner also moves to supplement the § 2255 Motion with a claim that

the Court lacked subject matter jurisdiction over the case. (Civ. Doc. 5).

Petitioner contends that the interstate commerce element of 18 U.S.C. § 922(g)

bears on the Court’s subject matter jurisdiction. He claims that the Court lacked

subject matter jurisdiction because the indictment did not allege, and the Court

did not find, that the firearm he possessed was an article of interstate

commerce. The United States opposes the Motion to Supplement, arguing that

the claim is both untimely and meritless. (Civ. Doc. 7).

The Court agrees with the United States that the claim is both untimely

and meritless, but it is easier to explain why the claim simply lacks merit. The

Eleventh Circuit has rejected the theory “that a failure of allegation or proof on

an interstate-commerce element deprives the district court of jurisdiction.”

Alikhani v. United States, 200 F.3d 732, 735 (11th Cir. 2000). In United States

v. Viscome, the Eleventh Circuit held that a defendant’s attack on the

sufficiency of the evidence concerning the interstate nexus element was a non-

jurisdictional defect that he waived by pleading guilty. 144 F.3d 1365, 1370

(11th Cir. 1998). Likewise, Petitioner waived his challenge to the interstate

commerce element because he pleaded guilty to possession of a firearm by a

convicted felon.

In any event, Petitioner admitted that the gun he possessed “was

manufactured in Nevada and necessarily traveled in interstate commerce by its

presence in Duval County, Florida.” (Crim. Doc. 73 at 24). “The interstate nexus

element of 18 U.S.C. § 922(g) can be established by showing that the firearm

was manufactured in a different state from the one in which it was ultimately

possessed by the defendant.” United States v. Folk, 754 F.3d 905, 917 (11th Cir.

2014) (citations omitted). Thus, the interstate commerce element was satisfied.

IV. Conclusion

The Court has considered each of Petitioner’s claims, but finds that none

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

1. Petitioner Cedric Lavar Brown’s Motion Under 28 U.S.C. § 2255 to

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

2. Petitioner’s Motion to Supplement (Civ. Doc. 5) is DENIED.

3. The Clerk should enter judgment in favor of the United States and

against Petitioner, and close the file.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN

FORMA PAUPERIS DENIED

IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate

of appealability. A prisoner seeking a motion to vacate has no absolute

entitlement to appeal a district court’s denial of his motion. 28 U.S.C. §

2253(c)(1). Rather, a district court must first issue a certificate of appealability

(COA). Id. “A [COA] may issue... only if the applicant has made a substantial

showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such

a 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-E] v. Cockrell, 537 U.S. 322, 335-36

(2008) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Petitioner has

not made the requisite showing in these circumstances. Because Petitioner is

not entitled to a certificate of appealability, he is not entitled to appeal in forma

pauperis.

DONE AND ORDERED at Jacksonville, Florida this 4th day of

January, 2021.

& limo g. Corrig aN

TIMOTHY J. CORRIGAN

United States District Judge

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Copies:

Counsel of record

Pro se petitioner

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