Opinion
3:18-cr-00009-CAR-CHW
11-22-2023
TEO JAMISON, Movant, v. UNITED STATES OF AMERICA, Respondent.
Proceedings Under 28 U.S.C. § 2255 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge.
Before the Court is Movant Teo Jamison's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 71). For the following reasons, it is RECOMMENDED that the motion (Doc. 71) be DENIED.
PROCEDURAL BACKGROUND
On February 14, 2018, a grand jury in the United States District Court for the Middle District of Georgia indicted Movant on two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 and possession of firearms during a drug trafficking crime in violation of 18 U.S.C. §§ 924(a)(1), (c), and (2). (Doc. 1). Movant entered into a plea agreement with the United States in October 2018, in which he agreed to plead guilty to the first count of possession with intent to distribute cocaine. (Doc. 30 at 2).
Movant's plea agreement explicitly stated that “the Court is not bound by any estimate of the advisory sentencing range that [Movant] may have received from [Movant's] attorney, the Government, or the Probation Office.” (Doc. 30 at 3). Movant acknowledged as part of his plea agreement that he would not be allowed to withdraw his plea because of any estimated guideline range received from his attorney, the Government, or the Probation Office that differed from the advisory guideline range computed by the Probation Office and contained in the Presentence Investigation Report. (Id.) The plea agreement also specified that Movant understood and had discussed with his attorney that the Court had the discretion to impose a sentence that is more or less severe than the advisory guideline range. (Id.) Movant waived his right to appeal his sentence as part of his plea agreement, except in the event that the Court imposed a sentence that exceeds the advisory guideline range or in the event that the Court imposed a sentence in excess of the statutory maximum. (Id. at 4). Movant also waived the right to collaterally attack his conviction and sentence under 28 U.S.C. § 2255 or through any other vehicle, except for such collateral attacks based on a claim of ineffective assistance of counsel. (Id.) Movant initialed each page of his plea agreement and signed it on the final page beneath an acknowledgement that he had discussed the agreement with his attorney, fully understood the agreement, and agreed to its terms. (Doc. 30).
As part of his plea agreement, Movant stipulated to the following facts. (Doc. 30). Movant was stopped while driving a gray BMW in September 2016 by a deputy sheriff for having an invalid tag on the vehicle. (Doc. 30 at 7-8). When the deputy approached, he smelled marijuana inside the car, so he asked Movant to step out of the vehicle. (Id.) Movant explained that he had rented the car and provided rental documentation that used a third party's name with Movant's date of birth and license number. (Id.; Doc. 44 ¶ 8). Movant denied having marijuana. (Doc. 30 at 8). Because the deputy had smelled marijuana, he informed Movant that he was going to search the vehicle. (Doc. 30 at 8). The deputy's search did not reveal any illicit substances, but he noticed that the glove compartment was locked. (Id.; Doc. 44 ¶ 9). Movant denied having a key for the glove compartment and claimed that he did not receive a key when he rented the vehicle. (Doc. 39 at 8). Deputies released Movant after notifying him that the car would be impounded pending a search warrant for the glove compartment. (Id.; Doc. 44 ¶ 9). As Movant left the scene, a deputy saw him flag down the tow truck that was moving his car and speak to the driver. (Doc. 30 at 8; Doc. 44 ¶ 10). A Green County Sheriff's Office (“GCSO”) investigator spoke with the owner of the towing company later that evening. (Id.) The owner reported that Movant had offered to pay his employee who towed the rental car in exchange for the driver returning to the car and retrieving something from it after it had been towed. (Id.)
The GCSO obtained a search warrant for the glove compartment the next day, and an employee from the rental company provided the key, noting that Movant had brought it back to the dealership earlier that day. (Doc. 30 at 8). The GCSO opened the glove compartment and found 167.64 grams of cocaine and a loaded, stolen firearm inside. (Id.; Doc. 44 ¶ 11).
At the plea colloquy, the Court addressed the appeal waiver contained in the plea agreement, and Movant confirmed that he knowingly and voluntarily waived his right to appeal his sentence by pleading guilty. (Doc. 57 at 13). The Court asked if Movant had read the agreement completely, if he understood it, if he had discussed it with his attorney, if he had initialed every page and signed it, and if it represented his complete agreement with the government. (Id.) Movant responded affirmatively to each question and confirmed that he did not have any questions about the agreement. (Id.) After reviewing the indictment and plea agreement with Movant in detail, the Court explained the consequences of pleading guilty and the rights that Movant would forfeit by doing so, and Movant acknowledged that he understood those consequences. (Id.) Subsequently, the Court accepted Movant's guilty plea and found that it had been freely and voluntarily entered and was properly supported by a factual basis. (Id. at 17).
The United States Probation Office prepared a presentence report with recommendations for sentencing. (Doc. 44). The report recommended applying a career offender enhancement pursuant to U.S.S.G. § 4B1.1(a) on the basis of an underlying controlled substance felony offense that occurred after Movant was eighteen years of age and the fact that Movant had at least two prior felony convictions for controlled substance or crime of violence offenses. (Id. ¶ 24). The prior predicate convictions were four 2010 Georgia convictions for aggravated assault and one 2014 Georgia conviction for aggravated assault. (Id. ¶¶ 48-49). Movant also had other convictions, including a 2001 conviction for possession of marijuana with intent to distribute. (Id. ¶ 41). Because of Movant's criminal history, the career offender enhancement, and other factors not relevant to the present motion, Movant's offense level was calculated at 29 and his criminal history category was calculated at VI, resulting in an advisory guideline range of 151 to 188 months of imprisonment. (Id. ¶ 96).
At the sentencing hearing, Movant's attorney objected on the basis that Movant had not received 5(K)(1) credit for the information he provided the Government about other crimes as part of his plea deal and that several of the Movant's prior predicate convictions were resolved on the same day by a plea entry, which he argued should count as one conviction rather than separate convictions. (Doc. 58 at 6). The Court overruled these objections because the conviction necessary to secure the 5(K)(1) benefit had not been completed and therefore could not be credited and because convictions are counted separately when they are based on intervening arrests that occur on different dates. (Id. at 7).
Movant raised several objections himself at the sentencing hearing, specifically (1) reiterating his attorney's objection on the basis of the separate convictions that were resolved on the same day, (2) reiterating his attorney's objection on the basis that he had not received 5(K)(1) credit for the information he had provided the Government as part of his plea deal, (3) contending that his attorney had misled him and “let [him] down” because of his failure to speak with him about the plea agreement and sentencing possibilities, (4) arguing that he qualified for a reduction based on extraordinary rehabilitation, and (5) arguing that aggravated assault with a deadly weapon is no longer considered a crime of violence but rather an act of reckless conduct with regard to the prior predicate crimes that qualified him for a career offender sentencing enhancement. (Doc. 58 at 8, 9, 12-13, 15, 17). The Court denied Movant's objections that repeated his attorney's objections for the same reasons as they were initially denied. The Court denied Movant's objection based on the sentencing advice provided by his attorney because the Court had previously explained during the plea hearing that Movant could not rely on the advice or promises of anyone regarding the possible sentence. The Court sentenced Movant to the lower end of his sentencing range based on his rehabilitation efforts and overruled Movant's final objection related to aggravated assault because the argument that Movant made related to the Armed Career Offender Act and not the career offender enhancement at issue.
Movant appealed his conviction, and on March 23, 2021, the Eleventh Circuit dismissed Movant's appeal based on the appeal waiver in his plea agreement. (Doc. 59). Proceeding pro se, Movant filed the present motion on June 20, 2022.
ANALYSIS
Movant, proceeding pro se, argues that his sentence should be vacated, set aside, or corrected pursuant to § 2255 because (1) he had ineffective assistance of counsel, (2) he accepted his plea deal based on an illusory benefit, (3) a Georgia conviction of aggravated assault does not qualify as a predicate offense for a career offender enhancement, and (5) his Fifth and Sixth Amendment rights were violated. As explained below, each of these arguments is meritless.
1. Movant has not shown ineffective assistance of counsel
In his § 2255 motion, Movant summarily states that his first ground for relief is ineffective assistance of counsel. (Doc. 71 at 3). Movant's reply brief provides greater detail about this claim, alleging that (1) counsel was ineffective for failing to properly file a motion to suppress, (2) counsel coerced Movant to plead guilty, (3) counsel was ineffective for failing to object to the career offender enhancement under U.S.S.G. § 4B1.1 designated in the presentencing report, (4) counsel was ineffective for failing to keep Movant informed of his actions in Movant's defense, (5) counsel was ineffective for failing to communicate the plea agreement with the Court, and (6) counsel was ineffective for refusing to file a direct appeal for substantive sentencing errors.
To prevail on a claim of ineffective assistance of counsel, a petitioner must establish by a preponderance of the evidence (1) that his attorney's performance was deficient, and (2) that he was prejudiced by the inadequate performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Chandler v. U.S., 218 F.3d 1305,1312-13 (11th Cir. 2000). A movant must prove that his counsel's performance “was unreasonable under prevailing professional norms and that the challenged action was not sound strategy” to establish deficient performance. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To show counsel's performance was unreasonable, a movant must establish that no competent counsel would have taken the action in question. Van Poyck v. Fla. Dep't of Corrs., 290 F.3d 1318, 1322 (11th Cir. 2002) (per curiam). There is a strong presumption that the challenged action constituted sound trial strategy. Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996). As for prejudice, a movant must show there is a reasonable probability that, but for counsel's inadequate representation, “the result of the proceeding would have been different.” Meeks v. Moore, 216 F.3d 951, 960 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 694). If a movant fails to establish that he was prejudiced by the alleged ineffective assistance, a court need not address the performance prong of the Strickland test. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
When challenging guilty pleas based on ineffective assistance of counsel, a movant must still satisfy the two-part Strickland test. Hill v. Lockhart, 474 U.S. 52, 58 (1985). In doing so, a movant may only attack the “voluntary and intelligent character of the guilty plea.” Id. at 56-57. A movant may establish deficient performance by demonstrating that counsel's advice was not within the “range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970). A movant must satisfy the prejudice prong by demonstrating “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.” Hill, 474 U.S. at 59; see also Martin v. United States, 949 F.3d 662, 667 (11th Cir. 2020). Further, a movant must also “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see Diveroli v. United States, 803 F.3d 1258, 1265 (11th Cir. 2015) (affirming denial of motion to vacate because “it would not have been rational for [the petitioner] to reject his plea bargain”).
Failure to File a Motion to Suppress
Movant's first argument for ineffective assistance of counsel, based on counsel's failure to file a motion to suppress, is puzzling, as Movant's attorney did file a motion to suppress. (Doc. 19). It seems that Movant believes that the motion to suppress was inadequate or that his attorney should have filed a better motion to suppress. In any case, any ineffective assistance claim related to a motion to suppress based on the search of his vehicle was waived by Movant's guilty plea. See Baird v. U.S., 445 F.App'x. 252, 254 (11th Cir. 2011) (“a § 2255 movant who entered a valid guilty plea waives any pre-plea ineffective assistance claims that do not concern his decision to enter the plea”); see also Bullard v. Warden, Jenkins Corr. Ctr., 610 F.App'x. 821, 824 (11th Cir. 2015); Wilson v. U.S., 962 F.2d 996, 997 (11th Cir. 1992). The motion to suppress also became moot, as Movant entered his guilty plea before the Court ruled on his motion to suppress.
Even if Movant's claim were not waived by his guilty plea, Movant's claim could not succeed because he has not met his burden of showing ineffective assistance of counsel on the basis of failing to file a motion to suppress. “To obtain relief where an ineffective assistance claim is based on trial counsel's failure to file a motion to suppress, a petitioner must prove (1) that counsel's representation fell below an objective standard of reasonableness, (2) that the [underlying] Fourth Amendment claim is meritorious, and (3) that there is a reasonable probability that the verdict would have been different absent the excludable evidence.” Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006). First, Movant's allegations fail to show that counsel's actions were unreasonable. Movant alleges that “Attorney Derek Wright waited until the very last day to file [a] motion to suppress on [Movant]'s behalf [and] filed [the motion] without allowing [Movant] to read it.” (Doc. 85 at 15). This conduct is not unreasonable. Filing a motion at the end of the filing period is not improper, and Movant has provided no argument to establish that an attorney's filing a motion without first allowing his client to read it is objectively unreasonable. Movant only alleges that “the facts [in the motion to suppress] were inconsistent with what [the attorney and Movant] had discussed.” (Id. at 16). Specifically, Movant “asked Attorney Wright to present in-dash camera pictures of the traffic stop and compare them to dispatch [reports] showing that GCSO did not call [the] vehicle tag in until 7 minutes after [the] stop.” (Id.)
But the record shows that the facts alleged in the motion to suppress are substantially similar to what Movant describes. Although Movant's attorney did not attach “in-dash” pictures of the traffic stop, the motion does allege that the traffic stop began before the deputy sheriff called in the vehicle's tag number and that the deputy accordingly had no basis to stop the vehicle. (Doc. 19 at 3-4). Counsel's decision not to include pictures along with the motion was not objectively unreasonable-there may have been a reason that the pictures were unavailable, or the attorney may have simply determined that using pictures was not necessary as he was able to clearly allege the relevant facts without the use of visual aids. Further, Movant has not attempted to meet the remaining requirements of showing ineffective assistance of counsel, as he has not attempted to show (1) that there is a reasonable probability that the outcome of his case would have differed if the motion to suppress that he desires had been filed or (2) that the underlying Fourth Amendment violation was meritorious. Accordingly, even if Movant had not waived this claim by pleading guilty, Movant's counsel was not ineffective for failing to file a motion to suppress. In fact, he did file a motion to suppress consistent with the motion Movant now describes.
Coercion to Plead Guilty
Movant claims that his counsel was ineffective because he “coerced [Movant] to plead guilty, telling [Movant] how to answer at the plea hearing [by] saying ‘Just answer the Judge by saying yes and no to his questions, if you make him mad, he won't give you as much time off.'” (Doc. 85 at 16).
Under the first prong of the Strickland ineffective assistance of counsel analysis, “counsel owes a lesser duty to a client who pleads guilty than to one who goes to trial, although counsel still must ‘make an independent examination of the facts and circumstances and offer an informed opinion to the accused as to the best course to follow.'” Cruz v. U.S., 188 Fed.App'x. 908, 913 (11th Cir. 2006) (quoting Agan v. Singletary, 12 F.3d 1012, 1017-18 (11th Cir. 1994)). To satisfy the second prong of the Strickland test and show prejudice to his case, a movant must show “not only that counsel committed professional error, but also a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial.” Id. (citing U.S. v. Pease, 240 F.3d 938, 941 (11th Cir. 2001)). To be entitled to collateral relief under such circumstances, a movant must be able to “prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.” Downs-Morgan v. U.S., 765 F.2d 1534, 1539 (11th Cir. 1985).
Movant's allegations fail to meet the standard required to show ineffective assistance of counsel as to his plea agreement. Contrary to Movant's claims, instructing a client on how best to answer a judge to be well-perceived is not ineffective assistance of counsel. Movant does not claim that his counsel told him to be dishonest or otherwise to answer improperly. An attorney “focus[ing]” on getting a plea deal does not constitute coercion. (Doc. 85 at 16). Although Movant alleges that his attorney was focused on getting a plea deal because “he had [already received] full payment for services,” plea deals are the most common resolution in criminal cases, and frequently the most beneficial option for criminal clients. Rather than showing that he was coerced into pleading guilty, Movant's allegations indicate that his attorney provided him with the “informed opinion . . . as to the best course to follow” that counsel are required to provide their clients when considering a plea agreement. Agan, 12 F.3d at 1017-18. Counsel allegedly instructed his client to answer the Court in a respectful, clear manner and focused on getting his client a plea deal which, as discussed in further detail in a later section, earned him a much lesser sentence than he might have faced after a trial. Movant has not shown that his counsel committed professional error. Movant also fails to show or even raise the argument that he would have insisted on going to trial but for his counsel's error of “coercing” him into a plea agreement.
Finally, the record reflects that Movant entered his guilty plea knowingly and voluntarily. During the plea hearing, the Court confirmed that Movant was competent and not suffering from any condition or influence that would make his plea unknowing or involuntary, Movant agreed that he was pleading guilty of his own free will, because he was guilty, and confirmed that no one had threatened him or “done anything in an attempt to force [him] to plead guilty.” (Doc. 57 at 8-10). Movant was told by the Court exactly which constitutional rights he forfeited by pleading guilty and given the opportunity to ask any questions that he might have regarding his rights. (Id. at 5-8). Movant agreed that he had enough time to review his case with his attorney, stated that he was satisfied with his counsel's services, and that he and his attorney had discussed the penalty range related to his plea agreement as well as any defenses that he may have had to the original charges against him. (Id. at 4-6). Movant gave these responses under oath.
Although Movant may now mean to argue that his counsel misled him about his sentencing possibilities if he did not plead guilty, “[t]here is a strong presumption that the statements made during the colloquy are true,” and Movant has not made adequate allegations to overcome that presumption. Blackedge v. Allison, 431 U.S. 63, 73-74 (1977). The transcript of the plea agreement shows that the Court clearly explained to Movant that “the sentence imposed [upon him] may be different from any estimate that [his] attorney may have given [him]” and that “[he] could not rely on any estimate made by anyone at this time as to what [his] sentence may be and that [he] should not enter a plea of guilty based in reliance on any such estimate.” (Doc. 57 at 16). Movant confirmed that he understood the Court's explanation before the Court accepted his guilty plea, which belies his current contention that he was coerced into pleading guilty based on his counsel's guidance regarding possible sentencing. Additionally, “[a] defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus [of the prosecution's case against him and the apparent likelihood of securing leniency based upon his guilty plea] misapprehended . . . the likely penalties attached to alternative courses of action.” Brady v. U.S., 397 U.S. 742, 756-57 (1970). Even if Movant did mistakenly believe that he faced a lesser potential imprisonment time if he had proceeded to trial rather than pleading guilty, that mistaken belief would not render his otherwise proper plea agreement invalid or make his attorney ineffective for brokering the plea agreement.
Failure to Object to USSG § 4B1(1) Designation
Movant argues that his counsel was ineffective for “failing to object to U.S. Probation Office's career criminal enhancement 4B1.1 designation.” (Doc. 85 at 16). Movant does not elaborate on the details of his claim, aside from adding that he “emailed, mailed, and called” his attorney to give him “all objection[s] that he had with [the Presentencing Report]” and that his attorney did not respond regarding his defense strategy. (Id.) Another section of Movant's briefing seems to clarify his claim: “The Probation Office's PSR recommended applying a career offender enhancement pursuant to U.S.S.G.'s § 4B1.1(a). As prior predicate convictions, probation relied on Jamison's 2 convictions for aggravated assault.” (Id. at 4). This claim appears to be based upon Movant's argument that a Georgia conviction for aggravated assault does not qualify as a predicate crime of violence for the purposes of career offender designation. Movant also raises this claim separately as an argument that his sentence is invalid, and the flaws in the argument's reasoning are more fully explained in the section addressing the separate claim. In short, Movant's argument is without merit because Movant confuses career offender status with the Armed Career Criminal Act (“ACCA”). Movant raised the same argument during his sentencing hearing, when the Court explained to him that he was confusing the career offender status with the ACCA. (Doc. 58 at 18).
Counsel was not objectively unreasonable for failing to raise a flawed argument as an objection to the Presentencing Report. Additionally, Movant has not attempted to argue that counsel's failure to raise this objection prejudiced him. On this record, it is impossible to see how Movant could make that argument, as he objected on this basis himself at his sentencing hearing and had his objection denied by the Court. Accordingly, Movant has not shown ineffective assistance of counsel on the basis of counsel's failure to object to this aspect of the Presentencing Report.
Failure to Keep Client Informed of Actions for Defense
Movant claims that his attorney refused to speak over the jail phone or visit him in jail because of the jail's distance. Movant also claims that his attorney stopped communicating with him and his family after receiving full payment for his representation. At the sentencing hearing, Movant stated that his attorney had not spoken to him in six months, and his attorney denied that allegation. (Doc. 58 at 11, 13-14). Movant now reiterates that he had not spoken to his attorney in six months before entering his sentencing hearing, and contends that he did not know “what to expect or why he was in court” on his sentencing date. (Doc. 85 at 17). But the record shows that Movant did understand that he had entered a plea agreement, that he was subject to sentencing according to sentencing guidelines and the discretion of the Court, and that he was able to raise various objections and have his questions answered during his sentencing hearing. Additionally, Movant does not argue that the alleged ineffective assistance of his counsel actually prejudiced his case or show how he might have fared better at his sentencing hearing with more communication with his lawyer.
At his change of plea hearing, Movant confirmed that he had sufficient time to discuss his case with his lawyer, that he was satisfied with his services, and that he had read and understood the implications of his plea agreement. (Doc. 57 at 5-15). The Court also discussed sentencing with Movant at the change of plea hearing and confirmed that Movant understood what the Federal Sentencing Guidelines are and how they function. (Id. at 15). Movant was told of his initial sentencing hearing date at his change of plea hearing, although that date was later continued. (Id. at 18; Docs. 39; 42; 45). Although Movant may have desired additional communication with his attorney, he does not explain in this claim what he believes he may have gained from that additional communication. Other ineffective assistance of counsel claims that Movant raises refer to specific objections that Movant believes his attorney should have raised or actions he should have taken, but as discussed in their respective sections, these claims are without merit and Movant has not shown that counsel was ineffective for failure to communicate his defense strategy more thoroughly before his sentencing hearing.
Failure to Communicate Plea Agreement to Sentencing Judge
Movant argues that his counsel's failure to communicate the plea agreement to the sentencing judge “prejudiced the outcome of [Movant's] sentencing.” (Doc. 85 at 17). Movant claims that “if [he] would have known [the] plea agreement would not be accept[ed] as promised, he would have insisted on going to trial.” (Id.)
Movant's argument demonstrates a fundamental misunderstanding of how plea agreements function, despite the record showing that he was repeatedly told that his plea agreement would not necessarily control his sentence. The plea agreement was properly submitted to the Court, in writing, and the judge was well aware of it. Movant was also told in great detail that his plea agreement was not binding upon his sentencing. During the change of plea hearing, Movant was told that the Court would not decide whether to accept the plea agreement until after the probation office had filed a presentence report in his case. (Doc. 57 at 14). The Court further explained that even at that time, it was possible that the Court might decide not to accept his plea agreement. (Id.) Movant was also told that the Court could, in its discretion, impose any sentence that fell within the range of sentence provided by the statutes that he had violated. (Id. at 15). The Court specifically told Movant that “[he could not] rely on any estimate made by anyone at this time as to what [his] sentence may be and that [he] should not enter a plea of guilty based in reliance on any such estimate.” (Id. at 16).
This principle was reiterated at the sentencing hearing, when the Court explained in detail why Movant was receiving the sentence that was issued. (Doc. 58). The Court considered the presentence report, accepted Movant's guilty plea, and adjudicated Movant guilty of Count One of the indictment. (Id. at 20-21). The Court determined that the appropriate advisory sentencing range was 151 to 188 months, considering Movant's career offender adjusted offense level of 29 and his criminal history category of VI. (Id.) The Court therefore sentenced Movant to 151 months imprisonment. (Id.) The Court also explained why it could not give Movant a reduction based on his cooperation in another case that would have allowed for a lower sentencing range. (Id. at 10). Specifically, because the case in which Movant had cooperated had not yet gone to trial, a motion for a reduction based on the successful outcome of Movant's cooperation in that trial could not yet be filed. (Id.) Movant's claim does not reflect any ineffective assistance by counsel, but rather Movant's own misunderstanding of how plea agreements function, despite repeated explanation.
Refusal to File Direct Appeal for Substantive Sentencing Errors
Movant's final summarily stated claim for ineffective assistance of counsel is based upon his attorney's failure to file a direct appeal for substantive sentencing errors, specifically based upon the career offender enhancement and Movant's belief that his sentencing guideline range was miscalculated. (Doc. 85 at 18). Although Movant cites broadly to ineffective assistance of counsel cases, he does not explain how he was prejudiced by this, especially considering that he did have another attorney file a direct appeal on his behalf. Movant does not claim that the appeal was insufficient or otherwise explain why his attorney, whose services he apparently had many qualms with, was ineffective for failing to continue to represent him upon appeal. From Movant's sparse claim, there is no basis to find his counsel ineffective for failing to continue his representation on direct appeal nor has Movant argued that his counsel's failure to do so was prejudicial to his case.
2. Movant's plea agreement was not based on an illusory benefit
Movant argues that his plea agreement was based on an illusory benefit, claiming that he was promised the Government would recommend a sentence free of the career offender enhancement but that the Government instead advocated for a higher sentence. (Doc. 85 at 19).
In support of his argument that his plea deal was accepted based on an illusory benefit, Movant cites United States v. Pierre, a Fifth Circuit opinion in which a district court's acceptance of a plea deal was vacated because the government had agreed not to pursue a sentencing enhancement that was not applicable to the defendant's case as part of the deal. No. 20-30728, 2022 WL 1198222 (5th Cir. April 22, 2022) (“[the defendant] gave up his right to stand trial to avoid a punishment that could never come . . . the district court committed plain error by accepting a plea based on an illusory benefit”). Fifth Circuit opinions are not binding precedent in the Eleventh Circuit. Moreover, Movant's case is not like the defendant's in Pierre. Here, the benefit the plea deal was based upon was not illusory- Movant only pled guilty to Count One of the indictment and the Government refrained from bringing additional charges against him based on the information he provided during his cooperation. (Doc. 30 at 6-7). If Movant had been convicted of both counts in his indictment, he could have faced a sentencing guidelines range of 262 to 327 months' imprisonment as opposed to the sentencing guidelines range of 151 to 188 months' imprisonment under the conditions of his plea agreement. (Doc. 44 ¶¶ 96, 97). Movant's plea agreement provided a substantial benefit in terms of his sentencing possibilities.
As explained above, Movant was told at sentencing why the motion to reduce his sentence based on his cooperation in another case could not be filed at the time he was sentenced. (Doc. 58 at 10). The Government did not make an illusory promise to lure Movant into a plea agreement that provided no benefit to him; Movant's cooperation had simply not produced a result that qualified for a motion for reduction at the time he was sentenced. Additionally, contrary to Movant's claims, there was no promise by the Government not to seek the application of a specific sentence enhancement against Movant within the plea agreement. To the extent that Movant means that he agreed to his plea agreement relying on a promise that was not contained within the agreement, the plea agreement's terms clearly state that it “constitutes the entire agreement” between the parties. (Doc. 30 at 7). As explained above, Movant stated that he read the agreement, understood it, and discussed it with his attorney, and additionally, he confirmed that he understood that the agreement was his “complete agreement with the government.” (Doc. 57 at 13-14). These statements during the colloquy contradict Movant's current contention that he believed that the plea agreement was based on any additional promise or benefit. See Blackedge, 431 U.S. at 73-74 (“There is a strong presumption that the statements made during the colloquy are true”).
3. A Georgia conviction for aggravated assault is a proper predicate crime for a career offender designation
Movant argues that a Georgia conviction for aggravated assault does not qualify as a predicate crime of violence for the purposes of career offender status under the Sentencing Guidelines. In support of this argument, Movant cites Borden v. U.S. and U.S. v. Moss. 141 S.Ct. 1817, 1825 (2021); 920 F.3d 752 (11th Cir. 2019). Movant's argument is without merit because of the appeal and collateral attack waiver in his plea agreement, because any sentencing error on this basis would not constitute a complete miscarriage of justice that would warrant relief, and because Movant confuses career offender status with the Armed Career Criminal Act (“ACCA”).
As an initial matter, the appeal and collateral attack waiver in Movant's plea agreement prohibits Movant's present argument, as Movant “waive[d] any right to collaterally attack [his] conviction and sentence under Title 28, United States Code, Section 2255, or to bring any other collateral attack” against his conviction, with the exception of ineffective assistance of counsel claims, as part of his plea agreement. (Doc. 30 at 5). Movant's sentence and appeal waiver is valid, as the record shows that Movant made the waiver knowingly and voluntarily. Williams v. U.S., 396 F.3d 1340, 1341 (11th Cir. 2005) (holding that a defendant can be shown to have made a waiver knowingly and voluntarily where the district court specifically questioned the defendant about the waiver). The record shows that the Court specifically questioned Movant about the waiver during the colloquy. (Doc. 57 at 15). Accordingly, the sentence and appeal waiver is enforceable and precludes Movant from collaterally attacking his sentence. See Demello v. U.S., 623 F.App'x. 969, 972 (11th Cir. 2015) (citing Williams, 396 F.3d at 1342).
Further, Movant's argument is not a cognizable sentencing challenge in the context of a § 2255 motion. “Section 2255 does not provide a remedy for every alleged error in conviction and sentencing. . . [A] district court lacks the authority to review . . . alleged [errors in sentencing] ‘unless the claimed error constitute[s] a fundamental defect which inherently results in a complete miscarriage of justice.'” Spencer v. U.S., 773 F.3d 1132, 1138 (11th Cir. 2014) (quoting U.S. v. Addonizio, 442 U.S. 178, 185 (1979) (internal quotations omitted)). “When a federal prisoner, sentenced below the statutory maximum, complains of a sentencing error and does not prove either actual innocence of his crime or the vacatur of a prior conviction, the prisoner cannot satisfy the demanding standard that a sentencing error resulted in a complete miscarriage of justice.” Id. at 1139. Here, as in Spencer, even
if [Movant] is not a career offender, his sentence is lawful . . . [Movant] does not allege that he is actually innocent of the crime for which he was indicted, nor that any of his prior convictions have been vacated. Instead, he only contends that the district court erroneously classified him as a career offender under the advisory guidelines. But any miscalculation of the guideline range cannot be a complete miscarriage of justice because the guidelines are advisory. If the district court were to resentence [Movant], the district court could impose the same sentence again.Id. at 40 (internal citations omitted).
Regardless of the appeal waiver, Movant's argument also fails on the merits. Borden v. U.S., which Movant cites, held that a criminal offense with a mens rea of recklessness does not qualify as a violent felony under the Armed Career Criminal Act. 141 S.Ct. 1817, 1825 (2021). Following Borden, the Eleventh Circuit held in U.S. v. Moss that a Georgia conviction for aggravated assault under O.C.G.A. § 16-5-21(a)(2) based on a simple assault could be committed recklessly. 4 F.4th. 1292 (11th Cir. 2021). Accordingly, because a crime with a mens rea of recklessness contradicted the ACCA's requirement that a qualifying felony be predicated on the intentional use of physical force, the Eleventh Circuit concluded that a Georgia aggravated assault conviction does not qualify as a violent felony for the purposes of the ACCA. Id.
Movant relies on Borden and Moss to argue that his career offender designation was improper, but Movant's sentence was not determined by the ACCA-rather, Movant's Georgia aggravated assault convictions designate him a career offender under the sentencing guidelines. Therefore, the cases that Movant cites do not apply to his situation. The confusion between the career offender designation and the ACCA was also explained at Movant's sentencing hearing, where he raised the same argument. (Doc. 58 at 18). Contrary to Movant's claims that his career offender designation is improper, the Eleventh Circuit has upheld the use of a Georgia aggravated assault conviction as a predicate crime for career offender status after both Borden and Moss were decided. See U.S. v. Glenn, 2021 WL 4618075 (11th Cir. Oct. 6, 2021). Accordingly, Movant has not shown a basis for relief based on any error related to his career offender designation.
4. Movant has not shown that his sentence violates any constitutional right
Movant argues that his sentence is unconstitutional because it violates his Fifth and Sixth Amendment rights. (Doc. 85 at 20-21). In support of this argument, Movant claims that his sentence is unconstitutional and should be corrected to remove the career offender enhancement. Movant also argues that he “should not have been punished for his lawyer's ineffectiveness to hold a evidentiary hearing with the parties of the court, and failure to properly object and communicate the plea agreement.” (Id.) Movant argues that “facts that increase the guideline sentence must be proved by the Government beyond a reasonable doubt” and that it is reversible error if a district court fails to use the reasonable doubt standard. (Id. (citing U.S. v. Staten, 466 F.3d 708 (9th Cir. 2006))). Movant also lists a variety of health conditions that he argues indicates that he is at a low-risk for reoffence, and asks that his sentence be reduced on that basis.
As explained above, Movant has not shown that his career offender designation was in error. Even if there was an error in Movant's sentencing, it would not rise to the level of a complete miscarriage of justice such that relief would be warranted. See Spencer, 773 F.3d at 1139. Movant has also not shown that his Sixth Amendment rights were violated, as none of his ineffective assistance of counsel claims have merit, as explained above. Movant cites to a Ninth Circuit opinion for his argument that “facts that increase the guideline sentence must be proved by the Government beyond a reasonable doubt,” a decision that is not binding precedent within the Eleventh Circuit. Moreover, the facts that gave rise to Movant's career offender designation, his past convictions, are not contested. Movant's final argument, related to his health issues, does not suggest any constitutional violation or any other error that would provide a basis for relief.
CONCLUSION
For the reasons discussed herein, it is RECOMMENDED that Movant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 71) be DENIED, and this action be DISMISSED without prejudice.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.