Mitchell v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARVIN MITCHELL,

Petitioner,

v. Case No. 8:24-cv-873-TPB-TGW

Case No. 8:19-cr-529-TPB-TGW

UNITED STATES OF AMERICA,

Respondent.

____________________________________

ORDER DENYING MOTION TO VACATE SENTENCE

Marvin Mitchell moves under 28 U.S.C. § 2255 to vacate his convictions

and sentence for conspiracy to distribute and distributing controlled

substances. After pleading guilty, he is currently serving a sentence of 180

months. In this action, he challenges his convictions and sentence on six

grounds and claims he received constitutionally ineffective assistance of

counsel. Mitchell is entitled to no relief.

I. Background

Mitchell was charged with conspiring to distribute, and possess with the

intent to distribute, cocaine base, fentanyl, and heroine resulting in a death,

in violation of 21 U.S.C. §§ 846 and 841(b)(2)(C) (Count One); distributing, and

possessing with the intent to distribute, fentanyl resulting in a death, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2 (Count

Two); distributing, and possessing with the intent to distribute, fentanyl and

heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Three);

and possessing with the intent to distribute cocaine base, fentanyl, and heroin,

in violation of 21 U.S.C. §§ 841(a)(1) 841(b)(1)(C) and 18 U.S.C. § 2 (Count

Four). (Crim. Doc. 61) Under a plea agreement, Mitchell pleaded guilty to

lesser included offenses charged in Counts One and Two, absent the allegations

that the offenses resulted in a death. (Crim. Doc. 144 at 1–2) Specifically, he

pleaded guilty to conspiracy to distribute, and possess with intent to distribute,

cocaine base, fentanyl, and heroin (Count One) and possession with intent to

distribute fentanyl and heroine (Count Two). (Id.) The United States agreed

to dismiss the remaining counts and to make specific sentencing

recommendations. (Id. at 3–4)

At sentencing, the United States objected to the U.S. Probation Office’s

conclusion that Mitchell did not qualify as a career offender under U.S.

Sentencing Guidelines § 4B1.1. (Crim. Doc. 158 at ¶ 63) The Court sustained

the objection and found Mitchell to be a career offender. (Crim. Doc. 172 at 32

and 42) One of Mitchell’s offenses of conviction (Count Two) was a controlled

substance offense, and he had two prior felony controlled substance offenses,

including a 2008 Florida conviction for possession of cocaine with the intent to

sell, manufacture, or deliver, and a 2009 Florida conviction for sale and

delivery of cocaine. (Crim. Doc. 165 at ¶ 63, final presentence report with Court

corrections)

Mitchell objected to the drug weight attributed to him in the presentence

report. To overcome that objection, the United States called one of Mitchell’s

co-conspirators, Emma Leifer. Based on her testimony, the Court overruled

Mitchell’s objection and held him accountable for 286.8 grams of fentanyl, 1.2

grams of fentanyl analogue, and 5.63 grams of cocaine base, which amounted

to a total converted drug weight of 749.10 kilograms. (Crim. Doc. 172 at 25;

Crim. Doc. 165 at ¶ 57) Under U.S.S.G. § 2D1.1(a)(5) and (c)(6), Mitchell’s base

offense level was 28 because his offenses involved between 700 and 1,000

kilograms of total converted drug weight. (Crim. Doc. 165 at ¶ 57)

With a total offense level of 29 and a criminal history category of VI, the

Probation Office calculated an advisory guidelines range of 151 to 188 months.

(Crim. Doc. 165 at ¶ 148) The Court sentenced Mitchell to 180 months, and a

judgment was entered against him on August 22, 2022. (Crim. Doc. 166)

On direct appeal, Mitchell argued that the Court erred by sentencing

him as a career offender and in determining the amount of drugs attributed to

him. United States v. Mitchell, No. 22-12889, 2023 WL 565544 (11th Cir. Jan.

23, 2023) (brief of appellant). The Eleventh Circuit dismissed the appeal based

on the sentence-appeal waiver in his plea agreement. United States v. Mitchell,

No. 22-12889, 2023 WL 3085332, at *1 (11th Cir. Apr. 26, 2023).

II. Analysis

Mitchell now moves to vacate his convictions and sentence and claims:

(1) he is not a career offender after United States v. Dupree, 57 F.4th 1269 (11th

Cir. 2023) (en banc), and both trial and appellate counsel were ineffective for

not challenging his career offender designation based on Dupree; (2) his Florida

convictions are not predicate controlled substance offenses, and trial counsel

was ineffective for not challenging his career offender designation on this basis;

(3) appellate counsel was ineffective for not requesting that his appeal be

stayed pending the resolution of United States v. Jackson, 55 F.4th 846 (11th

Cir. 2022); (4) the plea agreement is vague because he did not know he could

be sentenced as a career offender, and trial counsel was ineffective for allowing

him to plead guilty to a vague plea agreement; (5) the plea agreement is

defective because it does not specify the length of supervised release he faced,

and trial counsel was ineffective for allowing him to plead guilty to an

indeterminate amount of supervised release; and (6) the Court erred in

determining the amount of drugs attributed to him, and counsel was ineffective

for not challenging the Court’s determination. The United States responds

that Mitchell’s claims are procedurally defaulted and meritless.1 Mitchell’s

1 The Court rejects Mitchell’s claims as meritless. See Dallas v. Warden, 964 F.3d

1285, 1307 (11th Cir. 2020) (“[A] federal court may skip over the procedural default

analysis if a claim would fail on the merits in any event.”); Garrison v. United States,

73 F.4th 1354, 1359 n.9 (11th Cir. 2023) (same).

claims lack merit, and this motion must be denied. 2

To prevail on a claim of ineffective assistance of counsel, the petitioner

must show that (1) counsel’s representation fell below an objective standard of

reasonable professional assistance; and (2) the petitioner was prejudiced by

that deficient performance. Strickland v. Washington, 466 U.S. 668, 693–94

(1984). To establish deficient performance, a petitioner must show that “no

competent counsel would have taken the action that his counsel did take.”

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). A

petitioner demonstrates prejudice only when he establishes “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

A. Ground One

Mitchell claims that he is not a career offender after Dupree and that

both trial and appellate counsel were ineffective for not challenging his career

offender designation based on Dupree.3 Dupree holds that “the definition of

‘controlled substance offense’ in § 4B1.2(b) does not include inchoate

offenses[,]” and conspiracy offenses under 21 U.S.C. § 846 qualify as inchoate

2 An earlier order permits Mitchell to reply thirty days after the United States files

its response. (Civ. Doc. 9) The United States filed its response on October 22, 2024.

(Civ. Doc. 10) To date, Mitchell has not replied.

3 Dupree was issued January 18, 2023, after Mitchell’s 2022 conviction and sentence

but before the Eleventh Circuit dismissed Mitchell’s appeal on April 26, 2023.

offenses. 57 F.4th at 1271 and 1277–79 (ruling that “Dupree’s conviction for

conspiracy to possess with intent to distribute heroin and cocaine in violation

of § 846 is not a controlled substance offense because the plain text of § 4B1.2(b)

unambiguously excludes inchoate crimes”). Mitchell argues that because his §

846 conspiracy conviction in Count One is not a controlled substance offense

after Dupree, he is not a career offender and both trial and appellate counsel

should have advanced this argument.

A defendant is a career offender if the defendant (1) is “at least eighteen

years old at the time [he] committed the instant offense of conviction;” (2) his

“offense of conviction is a felony that is either a crime of violence or a controlled

substance offense;” and (3) he “has at least two prior felony convictions of either

a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1. A

controlled substance offense is “an offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that prohibits the

manufacture, import, expert, distribution, or dispensing of a controlled

substance . . . or the possession of a controlled substance . . . with intent to

manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2.

Dupree entitles Mitchell to no relief. Dupree was issued after Mitchell’s

2022 sentencing, and “defendants are not entitled to an attorney capable of

foreseeing the future development of constitutional law.”4 Thompson v.

Wainwright, 787 F.2d 1447, 1459 n.8 (11th Cir. 1986). The Eleventh Circuit

has consistently held that “[a]n attorney’s failure to anticipate a change in the

law does not constitute ineffective assistance.” Steiner v. United States, 940

F.3d 1282, 1293 (11th Cir. 2019). And, even if non-binding precedent existed

from which counsel could have formulated a challenge to the career offender

enhancement, counsel is not deficient for not doing so. See Bajorski v. United

States, 276 F. App’x 952, 954 (11th Cir. 2008) (“Even if a claim based upon an

anticipated change in the law is reasonably available at the time counsel failed

to raise it, such failure does not constitute ineffective assistance.”); Dell v.

United States, 710 F.3d 1267, 1282 (11th Cir. 2013) (“[I]t generally does not

fall below the objective standard of reasonableness for trial counsel to fail to

raise a claim in anticipation that undeniably would lose under current law but

might succeed based on the outcome of a forthcoming [appellate] decision.”);

Pitts v. Cook, 923 F.2d 1568, 1573–74 (11th Cir. 1991)(“[L]awyers rarely, if

ever, are required to be innovative to perform within the wide range of conduct

4 Furthermore, Dupree cannot be applied retroactively. “For a new rule to be

retroactive, the Supreme Court must make it retroactive on collateral review.” In re

Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000). The Supreme Court has not done so.

See Seymore v. United States, No. 2:23-cv-469-SPC-NPM, 2024 WL 50805, at * 6

(M.D. Fla. Jan. 4, 2024).

that encompasses the reasonably effective representation mandated by the

Constitution.”).

Moreover, Mitchell’s claim fails because he is a career offender absent

his conspiracy conviction under § 846 in Count One because he was also

convicted of distributing fentanyl and heroin under § 841 in Count Two. The

presentence report applies the career offender enhancement because one of his

two offenses of conviction is a controlled substance offense. His offense of

conviction for distributing fentanyl and heroin under § 841 constitutes “a

felony controlled substance offense.” United States v. Williams, 718 F. App’x

890, 897 (11th Cir. 2017) (concluding that a career offender enhancement was

properly applied when the offenses of conviction included violations of §§ 841

and 846 and the defendant had at least two prior felony controlled substance

convictions). Accordingly, because Mitchell’s § 841 conviction in Count Two

constitutes a controlled substance offense to support the career offender

enhancement, Mitchell cannot show that trial and appellate counsel rendered

ineffective assistance by failing to argue that neither of his offenses of

conviction qualifies as a predicate controlled substance offense. Counsel is not

ineffective for failing to make a meritless argument. Denson v. United States,

804 F.3d 1339, 1342 (11th Cir. 2015) (citing Freeman v. Attorney General,

Florida, 56 F.3d 1225, 1233 (11th Cir. 2008)).

B. Ground Two

Mitchell claims that his prior felony convictions under Fla. Stat. §

893.13(1) are not predicate controlled substance offenses because they are

“overbroad in that [they] incorporate[] inchoate offenses such as conspiracy

and attempt.” (Civ. Doc. 6 at 7) He argues that trial counsel was ineffective

for not advancing this argument.

Mitchell’s claim is foreclosed by binding precedent. In United States v.

Smith, 775 F.3d 1262, 1268–69 (11th Cir. 2014), the Eleventh Circuit expressly

held that a drug conviction under Fla. Stat. § 893.13(1)(a) is a controlled

substance offense under the career-offender provision in U.S.S.G. § 4B1.2(b).

The Eleventh Circuit has subsequently reaffirmed Smith in published and

unpublished decisions. See United States v. Hameen, Nos. 19-14279 and 22-

12968, 2023 WL 6053541, at *10 (11th Cir. Sept. 18, 2023) (concluding that

“[the defendant’s] challenge that his Florida drug convictions under Fla. Stat.

§ 893.13 do not qualify as controlled substance offenses under the Guidelines .

. . is foreclosed by our binding precedent in Smith”); United States v. Bishop,

940 F.3d 1242, 1253– 54 (11th Cir. 2019) (affirming Smith’s holding that

convictions under Fla. Stat. § 893.13 qualify as controlled substance offenses

under the guidelines); United States v. Pridgeon, 853 F.3d 1192, 1198 (11th

Cir. 2017) (“We are bound to follow Smith.”).

Furthermore, in United States v. Agerton, No. 22-10194, 2023 WL

5537057, at *3–4 (11th Cir. Aug. 29, 2023), a panel of the Eleventh Circuit

rejected the same argument that Mitchell advances here. The Agerton panel

reasoned, “a defendant who attempts to transfer drugs commits the completed

crime of distribution, not the inchoate crime of attempted distribution.” Id. at

*4. Therefore, because Florida’s controlled substance statute “does not

criminalize inchoate offenses, . . . Florida’s § 893.13(1)(a) statute is not broader

than the definition of ‘controlled substance offense’ in the § 4B1.2(g) guideline.”

Id. (citing United States v. Penn, 63 F.4th 1305, 1317 (11th Cir. 2023)).

Accordingly, Mitchell’s claim is foreclosed by binding precedent, and counsel is

not ineffective for not advancing a meritless argument.

C. Ground Three

Mitchell claims that appellate counsel was ineffective for not requesting

that his appeal be stayed pending resolution of Jackson, which holds that the

defendant’s 1998 and 2004 Florida cocaine-related convictions qualified as

predicate serious drug offenses under the Armed Career Criminal Act

(“ACCA”). On May 15, 2023 (after the Eleventh Circuit dismissed Mitchell’s

appeal on April 26, 2023, but before issuance of its mandate on May 25, 2023),

the Supreme Court granted certiorari in Jackson, 143 S. Ct. 2457, No. 22-6640

(2023), and consolidated Jackson with United States v. Brown, 143 S. Ct. 2458,

No. 22-6389 (2023). On May 23, 2024, the Supreme Court affirmed Jackson,

holding that “a prior state drug conviction may constitute an ACCA predicate

if the drugs on the federal and state schedules matched when the state drug

offense was committed.” Brown v. United States, 602 U.S. 101, 118 (2024).

According to Mitchell, at the time of his appeal, “Jackson had been granted

certiorari under Brown v. United States, No. 22-6289 (2023),” and the “question

posed is important because it decides which version of federal law to apply at

the time of sentencing.” (Civ. Doc. 6 at 10)

Neither Jackson nor Brown afford Mitchell relief because those cases

concern the definition of serious drug offenses as ACCA predicates—not career

offender predicates. See United States v. Dubois, 94 F.4th 1284, 1305 (11th

Cir. 2024) (Rosembaum, J., concurring) (“[T]he text of ACCA’s definition of

‘serious drug offense’ and the Guidelines’ definition of ‘controlled substance

offense’ differ in three important ways that make any such holding in Jackson

and Brown inapplicable to the Sentencing Guidelines context.”). Mitchell

neglects to identify a reason that he would be entitled to relief under Jackson

and Brown. And, because Jackson and Brown are inapplicable to his case, he

cannot show that appellate counsel was ineffective for not requesting that his

appeal be stayed pending the resolution of those cases.

D. Ground Four

Mitchell claims his plea agreement was vague because it “did not specify

what section of Rule 11” of the Federal Rules of Criminal Procedure to which

he was pleading guilty. (Civ. Doc. 5 at 8) He argues that, if the plea agreement

fell under Rule 11(c)(1)(C), “then the government seeking the § 4B1.1 is in

violation of that Rule,” and the plea agreement “is so vague . . . that the

agreement cannot be knowing.” (Id. at 12) He further argues that if he had

known the United States could “seek a career offender enhancement he would

have sought trial.” (Id.) And, he claims trial counsel was ineffective for “failing

to secure a plea agreement that noted what Rule 11 section he was being

sentenced to.” (Civ. Doc. 6 at 10)

Mitchell cannot show that his plea agreement is so vague as to invalidate

the knowing nature of his guilty plea. Despite his assertions to the contrary,

the plea agreement states that “the remaining counts against [him], Counts

Three and Four, will be dismissed pursuant to Fed. R. Crim. P. Rule

11(c)(1)(A).” (Crim. Doc. 144 at 3) Furthermore, the plea agreement contains

no restriction on the United States’ ability to argue that the career-offender

sentencing guideline applies to Mitchell.

The record conclusively refutes Mitchell’s claim that his plea agreement

was so vague that he did not know he could be sentenced as a career offender.

During the plea hearing, the United States confirmed that the plea agreement

did not have “specific provisions about low end or Guideline sentence or

anything like that.” (Crim. Doc. 189 at 4) The Court explained to Mitchell that

the sentencing guidelines are advisory, and Mitchell confirmed his

understanding (id. at 8–9):

COURT: [The Probation Office] is going to

calculate [the] Sentencing Guidelines. .

. . [I]t’s what we call advisory, meaning

I can sentence you below that or above

that. But it is important factor in

determining your sentence, and you

understand that’s going to be

calculated after taking into account the

facts of your case, the amount of dope

involved, various other factors.

Do you understand that?

MITCHELL: Yes, sir.

Additionally, Mitchell twice confirmed during the plea hearing that he was

satisfied with counsel’s representation. (Id. at 14) At the conclusion of the

hearing, the Court found that Mitchell was pleading guilty knowingly,

intelligently, voluntarily, and with the advice of counsel, and Mitchell never

objected to this finding. (Id.)

Finally, at the sentencing hearing, Mitchell made no attempt to

withdraw his guilty plea. He neglected to notify the Court during allocution of

his belief that counsel had provided constitutionally ineffective assistance or

that he did not know he could be sentenced as a career offender. (Crim. Doc.

172 at 34–35)

“Solemn declarations in open court,” such as the declarations Mitchell

made during the plea and sentencing hearings, “carry a strong presumption of

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United States v.

Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong presumption

that the statements under oath at a plea colloquy are true.”). “[T]he

representations of the defendant, his lawyer, and the prosecutor at a hearing,

as well as any findings made by the judge accepting the plea, constitute a

formidable barrier in any subsequent collateral proceedings.” Id. at 73–74.

“[W]hen a defendant makes statements under oath . . . , he bears a heavy

burden to show his statements were false.” United States v. Rogers, 848 F.2d

166, 168 (11th Cir. 1988).

Mitchell is entitled to no relief because he made specific assurances

during both the plea and sentencing hearings that refute his current claim that

he did not know he could be sentenced as a career offender and that he was

dissatisfied with counsel’s representation. See United States v. Pease, 420 F.3d

938, 940–41 (11th Cir. 2001) (concluding that counsel’s failure to advise the

defendant of a potential career offender enhancement did not render the plea

involuntary when the magistrate judge informed the defendant he could not

rely on counsel’s sentence prediction); see also Winthrop-Redin v. United

States, 767 F.3d 1210, 1217 (11th Cir. 2014) (“The district court is entitled to

discredit a defendant’s newly-minted story . . . when that story is supported

only by the defendant’s conclusory statements” and is contradicted by the

record of the change-of-plea colloquy.). Because his claim is affirmatively

contradicted by the record of the plea and sentencing hearings, Mitchell has

not carried his “heavy burden to show his statements were false.” See Rogers,

848 F.2d at 168.

Finally, to establish prejudice in the context of a guilty plea, a defendant

must show 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. See

Premo v. Moore, 562 U.S. 115, 129 (2011). In his § 2255 motion, Mitchell argues

that he would have proceeded to trial if he knew he could be sentenced as a

career offender. However, he cannot show that “a decision to reject the plea

bargain would have been rational under the circumstances.” Padilla v.

Kentucky, 559 US. 356, 372 (2010). The United States’ evidence against

Mitchell, as summarized in the factual basis supporting Mitchell’s guilty plea,

was substantial, and Mitchell admitted these facts without objection. (Crim.

Doc. 144 at 12–15; Crim. Doc. 189 at 12-13) Furthermore, he benefitted

significantly by pleading guilty. Under the plea agreement, the United States

agreed to move to dismiss Counts Three and Four from the Superseding

Indictment and to recommend a three-point reduction to his offense level for

acceptance of responsibility. (Crim. Doc. 144 at 3–4) Consequently, Mitchell

fails to show that he was prejudiced by counsel’s performance because he has

not shown that a decision to reject the plea agreement would have been

rational. See McEarchen v. United States, 859 F. App’x 880, 882 (11th Cir.

2021) (concluding that a decision to reject a plea bargain was not rational when

the petitioner “accepted an advantageous plea arrangement . . . [which]

eliminated the risk that he would receive a sentence exceeding ten years

because the government agreed to forgo charging him for other federal

crimes”).

E. Ground Five

Mitchell claims that his “plea did not note [the] amount of supervised

release.” (Civ. Doc. 5 at 11) He also claims, in one sentence and without any

explanation, that “counsel was ineffective for allowing [him] to plea[d] guilty

to an indeterminate amount of supervised release.” (Civ. Doc. 6 at 12)

Mitchell is entitled to no relief because this claim is based on his

mistaken belief that a plea agreement must specify the term of supervised

release that a court will impose at sentencing. Rather, “[i]n imposing a term

of supervised release, the sentencing court must consider certain factors set

forth in 18 U.S.C. § 3553(a).” See United States v. Hernandez, 750 F. App’x

866, 869 (11th Cir. 2018).

The record shows that Mitchell understood that the Court would impose

a term of supervised release at sentencing. Both the plea agreement and the

presentence report state that Mitchell was subject to a term of supervised

release “of at least 3 years.” (Crim. Doc. 144 at 2; Crim Doc. 165 at ¶ 150) At

the plea hearing, the Court notified Mitchell that it could impose a term of

supervised release of at least three years, and Mitchell affirmed his

understanding (Crim. Doc. 189 at 6):

COURT: [Did] [a]nybody predict what sentence

they think I’m going to give you?

MITCHELL: No, sir.

COURT: If they did, you shouldn’t rely on it,

because nobody, including me, knows

what sentence I’m going to give you.

Because I haven’t even heard anything

about you, your background, or the

nature of this case.

So in addition to the 20 years, you could

have a fine of a million dollars on each

of these counts and a term of

supervised release of at least three

years and a special assessment of a

hundred dollars.

Do you understand that?

MITCHELL: Yes, sir.

Ultimately, the Court sentenced Mitchell to the statutory-minimum term of

three years’ supervised release. (Crim. Doc. 166 at 4; Crim. Doc. 172 at 38)

Mitchell’s claim fails because makes no attempt to disavow his sworn

declarations at the plea hearing that he understood he faced a minimum term

of three years’ supervised release and that the Court would impose a specific

term of supervised release at sentencing. Furthermore, Mitchell fails to show

he was prejudiced by counsel’s performance in allowing him to plead guilty to

an indeterminate term of supervised release. Mitchell does not go so far as to

claim that he would have proceeded to trial absent counsel’s advice to plead

guilty to an indeterminate term of supervised release. This alone bars relief.

See United States v. Brown, 586 F.3d 1342, 1347 (11th Cir. 2009) (holding there

was no reasonable probability that, but for an error regarding supervised

release, the defendant would not have pleaded guilty); see Thompson v.

Wainwright, 784 F.2d 1103, 1107 (11th Cir. 1986) (concluding that the

defendant failed to show prejudice because he neglected to claim he would have

chosen not to plead guilty if counsel correctly advised him of the applicable

penalties).

F. Ground Six

Mitchell claims that “the drug weight was incorrect because [the] Court

included unusable [foil] packaging as part of [the drug] weight.” (Civ. Doc. 5

at 11) He further claims that counsel was ineffective for not challenging the

Court’s determination of the quantity of drugs attributable to him. (Civ. Doc.

6 at 13–14)

“For sentencing purposes, the government bears the burden of

establishing drug quantity by a preponderance of the evidence.” United States

v. Cintora-Gonzalez, 569 F. App’x 849, 853 (11th Cir. 2014) (citing United

States v. Rodriguez, 398 F. 3d 1291, 1296 (11th Cir. 2005)). “Where . . . the

amount seized does not reflect the extent of the offense, the court should

approximate the drug quantity.” Id. “In estimating the quantity of drugs

attributable to a defendant, a court may base its computation on evidence

showing the average frequency and amount of a defendant’s drug sales over a

given period of time.” United States v. Frazier, 89 F.3d 1501, 1506 (11th Cir.

1996) (quoting U.S.S.G. § 2D1.1, cmt. n.12). The court’s determination “may

be based on fair, accurate, and conservative estimates of the quantity of drugs

attributable to a defendant, . . . [but it] cannot be based on calculations of drug

quantities that are merely speculative.” Id. (citing United States v. Zapata,

139 F.3d 1355, 1359 (11th Cir. 1998)). Furthermore, “[c]alculating a weight

based on the ‘gross weight’ of a drug mixture, which includes unusable

components, is error, and the Guidelines range must be evaluated based only

on the usable net weight of the drug.” United States v. Gomez, 818 F. App’x

907, 908 (11th Cir. 2020) (concluding that the district court’s “approximation

of the cocaine’s net weight . . . was purely speculative” because “[w]ithout

relying on any record evidence such as a laboratory report, photographs, or

witness testimony, the District Court conclusively decided that the cocaine’s

packaging elements did not weigh any more than 100 kilograms”).

The presentence report held Mitchell responsible for 286.8 grams of

fentanyl because he admitted to distributing approximately 100 packages

containing 0.1 grams of fentanyl per day, for approximately 28 days. (Crim.

Doc. 160 at 14) At sentencing, counsel objected to the drug weight as

unsupported by the evidence. Counsel argued that, although the laboratory

report verified that each of the foil packages weighed “less than 0.1 [grams],”

the presentence report improperly rounded up the measurement to 0.1 grams.

(Crim. Doc. 161 at 3–6) To substantiate the weight of the drugs, the United

States called Mitchell’s coconspirator, Emma Leifer, who testified at

sentencing about the amount of drugs sold and the duration of the sales.

(Crim. Doc. 172 at 14–17) Based on her testimony, the Court overruled

Mitchell’s objection and found that the drug weight attributed to Mitchell in

the presentence report was “very fair.” (Id. at 25)

Nothing in the record substantiates Mitchell’s speculative claim that the

weight of the aluminum foil packaging was improperly included in determining

the amount of drugs attributed to him. A movant is not entitled to relief when

his claim is merely “conclusory allegations unsupported by specifics or

contentions that in the face of the record are wholly incredible.” Tejada v.

Dugger, 941 F.2d 1551, 1559 (11th Cir. 1992); Saunders v. United States, 278

F. App’x 976, 979 (11th Cir. 2008) (explaining that a defendant must allege

“reasonably specific, non-conclusory facts . . . to undermine confidence in the

outcome”).

Furthermore, counsel lodged an objection to the quantity of drugs

attributed to Mitchell, but the objection was overruled. “The fact that a

particular defense was unsuccessful does not prove ineffective assistance of

counsel.” Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir. 2010). Indeed, Mitchell

does not suggest what more counsel could have argued to support the objection.

The record shows that counsel’s objection was overruled not because of

counsel’s ineffectiveness but because the presentence report’s calculation of the

quantity of drugs attributed to Mitchell was supported by laboratory reports

and witness testimony. Finally, Mitchell cannot show he was prejudiced by

counsel’s performance because, as the Court observed during sentencing and

as the presentence report explains, Mitchell’s guidelines range would remain

151 to 188 months even with a lower base offense level because he is a career

offender. (Crim. Doc. 65 at ¶41; Crim. Doc. 172 at 32)

III. Conclusion

Mitchell’s amended motion under § 2255 to vacate, set aside, or correct

his sentence (Civ. Doc. 5) is DENIED. The clerk is directed to enter a

judgment against Mitchell, terminate any pending motions, close this case, and

enter a copy of this order in the criminal case.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Mitchell is not entitled to a certificate of appealability (“COA”). A

prisoner moving under § 2255 has no absolute entitlement to appeal a district

court’s denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district

court must first issue a COA. Section 2253(c)(2) permits issuing a COA “only

if the applicant has made a substantial showing of the denial of a constitutional

right.” To merit a certificate of appealability, Mitchell must show that

reasonable jurists would find debatable both (1) the merits of the underlying

claims and (2) the procedural issues he seeks to raise. See 28 U.S.C.

§ 2258(c)(2); Slack v. McDaniel, 529 U.S. 4738, 478 (2000); Eagle v. Linahan,

279 F.3d 926, 985 (11th Cir 2001). Because he fails to show that reasonable

jurists would debate either the merits of the claims or the procedural issues,

Mitchell is entitled to neither a certificate of appealability nor an appeal in

forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Mitchell must obtain permission from the circuit court

to appeal in forma pauperis.

DONE and ORDERED in Chambers in Tampa, Florida, this 9th day

of March, 2025.

‘TOMBARBER—it«*™”

U.S. DISTRICT JUDGE

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