Opinion
CASE NO. 1:05cr47-SPM-GRJ
01-31-2012
UNITED STATES OF AMERICA v. ALLEN ELLIS GILLESPIE
ORDER
THIS CAUSE comes before the Court upon the Magistrate Judge's report and recommendation (doc. 70) dated January 11, 2012. Defendant Allen Ellis Gillespie was furnished a copy and has filed objections (doc. 71).
Pursuant to Title 28, United States Code, Section 636(b)(1), I find that the report and recommendation should be adopted. This case is distinguishable from Harris v. United States, 757 F.Supp. 1303 (S.D. Fla. 2010) because the prior convictions needed to qualify Defendant under the Armed Career Criminal Act were in fact included in the indictment, the factual basis for the plea, and the presentence investigation report. There is no need to reopen the sentencing proceeding to supplement the record. This case is also distinguishable from United States v. Canty, 570 F3d 1251, 1256 (11th Cir. 2009), because the Government's specific identification of three qualifying convictions in the factual basis for the plea does not amount to a waiver of reliance on other convictions that were also listed. In Canty, the Government explicitly adopted the position in the addendum to the presentence report that the objected-to facts about the prior convictions were being reported only to advise the court of the circumstances of arrest, not to prove that those convictions qualified. No similar waiver has been shown in this case. Based on the record that was before the Court at the time of sentencing, Defendant qualifies as an Armed Career Criminal. Accordingly it is
ORDERED AND ADJUDGED:
1. The report and recommendation (doc. 70) is adopted and incorporated by reference in this order.
2. Defendant's motion to vacate (doc. 38) is denied.
3. The Court will not issue a certificate of appealability because Defendant has failed to make a substantial showing of the denial of a constitutional right.
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Stephan P. Mickle
Senior United States District Judge