Derek Easton v. USA

Filing

Opinion issued by court as to Appellant Derek Easton. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 11-12722

Date Filed: 09/07/2012

Page: 1 of 5

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 11-12722
Non-Argument Calendar
_____________________________
D. C. Docket Nos. 1:10-cv-22231-FAM ; 1:09-cr-20236-FAM-1
DEREK EASTON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
_________________________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________________________
(September 7, 2012)
Before HULL, EDMONDSON, and BLACK, Circuit Judges.

PER CURIAM:
Derek Easton appeals the district court’s denial of his pro se 28 U.S.C.
§ 2255 motion to vacate. In his section 2255 motion, Easton claimed his trial

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counsel was ineffective for failing to challenge adequately the use of a prior drug
conviction to enhance Easton’s sentence under the Armed Career Criminal Act
(“ACCA”).1 The district court adopted the magistrate judge’s report and
recommendation that the motion be denied but granted Easton a certificate of
appealability (“COA”) on his enhanced sentence as an armed career criminal. No
reversible error has been shown; we affirm.
In reviewing a § 2255 proceeding, we review the district court’s factual
findings for clear error and its legal conclusions de novo. Devine v. United States,
520 F.3d 1286, 1287 (11th Cir. 2008) (citation omitted). The ACCA requires the
court to impose a sentence of at least 15 years if a defendant possesses a firearm or
ammunition after 3 previous convictions for violent felonies or serious drug
offenses. 18 U.S.C. § 924(e)(1).
Easton’s criminal history included a 2003 conviction for possession with
intent to sell cocaine within 1,000 feet of a school, in violation of Fla.Stat.Ann.
§ 893.13(1)(a).2 The presentence investigation report (“PSI”) described that
1

In his section 2255 motion, Easton also argued that his trial counsel was ineffective for
failing to file an appeal on his behalf despite his request to do so. At the evidentiary hearing, he
withdrew this claim, however.
2

Easton originally was charged with possession with intent to sell cocaine within 1,000 feet
of a school, a first-degree felony under Florida law. He eventually pleaded nolo contendere to a
lesser charge of possession with intent to sell cocaine, a second-degree felony under Florida law.
The judgment, however, included a scrivener’s error referencing the “1,000 feet from a school”
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Easton was arrested for selling cocaine to an undercover police officer. He later
pleaded nolo contendere to one count of possession with intent to sell a controlled
substance.
At his change-of-plea hearing, the state court indicated that Easton was
entering a plea to the charge of “possession with intent to sell,” a second-degree
felony. Although he filed other objections to the PSI, Easton did not object to the
inclusion of his 2003 drug conviction as a predicate offense under the ACCA. See
United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006) (noting that when
a defendant fails to object to statements in the PSI despite the opportunity to do so,
he is deemed to have admitted those facts). During his sentencing hearing, Easton
also did not file objections to his sentence being enhanced under the ACCA.
On appeal, Easton argues that the Shepard v. United States, 544 U.S. 13,
125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), documents in his case were ambiguous
and failed to indicate the specific part of the Florida statute underpinning his
conviction. He maintains that, because his plea was not supported by a factual
basis, his conviction could have been for the least prohibited act under the statute
-- purchasing a controlled substance -- and did not qualify as a serious drug
offense. Easton further argues that United States v. Shannon, 631 F.3d 1187 (11th

part from the original charge.
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Cir. 2011), mandates a finding that his prior state conviction was improperly used
to enhance his sentence because that case should be used by analogy to determine
that the offense of “purchase” is not a serious drug offense.
Eaton’s arguments are without merit. His substantial reliance on Shannon is
inapposite because our decision in that case was premised on the district court’s
inability to deduce from the Shepard documents the statutorily-prohibited part of
the statute underpinning the defendant’s conviction. See Shannon, 631 F.3d at
1189-90 (stating that a violation of Florida drug law is not a “controlled substance
offense” under the Guidelines if the conviction is for the “purchase” of a
controlled substance with the intent to distribute and further noting that, if the
record is ambiguous, we would assume that the conviction involved a charge for
the purchase of drugs, that is, the least prohibited act).
In this case, the change-of-plea hearing, as well as Easton’s petition to enter
a plea of nolo contendere, unambiguously indicates that Easton was convicted of
second-degree possession with intent to sell cocaine. None of the pertinent
documents make a reference to Easton’s being convicted of a purchase offense. In
addition, Easton has failed to provide support for his assertion that the “possession
with intent to sell” language used at his change-of-plea hearing was merely
shorthand for his statute of conviction, as opposed to a clear indicator that he was
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convicted of possession with intent to sell. Because a second-degree felony is
punishable by up to 15 years’ imprisonment under Florida law, Easton’s
conviction for possession of cocaine with intent to sell constitutes a serious drug
offense under the ACCA. See Fla Stat. Ann. §§ 775.082(3)(c), 893.13(1)(a)
(1987); 18 U.S.C. § 924(e)(2)(A)(ii).
Accordingly, the district court properly concluded that Easton’s 2003 state
conviction was a proper predicate offense under the ACCA; and his trial counsel
could not have been ineffective for failing to challenge that conviction.
AFFIRMED.

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