James Brown v. USA

Filing

Opinion issued by court as to Appellant James Joseph Brown. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10025
________________________
D.C. Docket Nos. 2:11-cv-14115-KMM; 2:04-cr-14032-KMM-1

JAMES JOSEPH BROWN,
Plaintiff – Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 5, 2017)
Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and VOORHEES, *
District Judge.

*

Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.

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VOORHEES, District Judge:
This appeal presents two issues: (1) whether an intervening decision of the
United States Supreme Court, or of this Court, permits Appellant James Joseph
Brown to establish, through a 28 U.S.C. § 2255 (2012) proceeding, that the district
court erred at sentencing when it determined that he qualified as a career offender
under United States Sentencing Guidelines Manual (“U.S.S.G.”) §§ 4B1.1, 1.2
(2003); and (2) whether the Government violated Brown’s due process rights by
misleading Brown as to the applicability of the career offender provision. Having
considered the parties’ arguments, as well as the decision of the United States
Supreme Court in Beckles v. United States, 137 S. Ct. 886 (2017), we affirm the
district court’s denial of relief on Brown’s 28 U.S.C. § 2255 motion.
I.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

In 2004, a grand jury indicted James Joseph Brown on the charge of using a
facility, a computer, and a means of interstate commerce, knowingly to persuade,
induce, entice, or coerce a minor to engage in sexual activity, and attempt to do the
same, in violation of 18 U.S.C. § 2422(b) (2003). Pursuant to a written plea
agreement, Brown pled guilty to the 18 U.S.C. § 2422(b) violation.1 As part of the
plea agreement, the Government and Brown stipulated to certain Guidelines

1

The specific facts of Brown’s offense of conviction are immaterial to the disposition of this
appeal but a discussion of the facts underlying Brown’s offense can be found in this Court’s
opinion in United States v. Brown (Brown I), 526 F.3d 691, 696-98 (11th Cir. 2008).
2

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calculations—Brown’s offense qualified for a base offense level of twenty-one and
Brown would receive a two-level enhancement for use of a computer and a three
level reduction for acceptance of responsibility. See U.S.S.G. §§ 2A3.2(b)(3),
3E1.1(a)-(b).

The Government further reserved the right to seek a two-level

enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, and the parties left
open the calculation of Brown’s criminal history category, see U.S.S.G. ch. 4. 2 By
not including reference to U.S.S.G. § 4B1.1 in the stipulations regarding the
calculation of Brown’s offense level, the Government implicitly averred its belief
that Brown did not qualify as a career offender. According to an affidavit from
Brown’s plea counsel, the Government and the United States Probation Officer
represented to plea counsel that, under then-governing law, the career offender
provision did not apply to the scoring of Brown’s offense. Brown’s counsel attests
that he, in turn, advised Brown regarding the inapplicability of the career offender
provision when counseling Brown regarding the likely consequences of accepting
the plea agreement. The plea agreement, however, advised Brown that, while
binding on the parties, the offense-level stipulations “shall not in any way bind the
United States Probation Office or the Court.”

2

In accordance with these stipulations, Brown faced a Guidelines range as low as 60 months and
as high as 84 to 105 months. See U.S.S.G. ch. 5, pt. A (sentencing table); see also U.S.S.G.
§ 5G1.1(b); 18 U.S.C. § 2422(b) (establishing five-year minimum sentence for § 2422(b)
violation).
3

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During Brown’s plea colloquy, Brown affirmed that he discussed the terms
of the plea agreement with his counsel, that he understood the terms of the plea
agreement, and that he knew he faced a sentence of up to thirty years’
imprisonment. The district court further questioned Brown regarding both the nonbinding nature of the stipulations in the plea agreement and the advisory nature of
the Guidelines, with Brown acknowledging his understanding of both matters.3
Between when Brown entered his plea and the scheduled date of his sentencing
hearing, this Court issued its decision in United States v. Searcy, 418 F.3d 1193
(11th Cir. 2005), in which it held that a violation of 18 U.S.C. § 2422(b)
constituted a “crime of violence” under the residual clause in U.S.S.G.
§ 4B1.2(a)(2).4 The United States Probation Office issued a revised presentence
investigation report that accounted for this Court’s decision in Searcy and
3

At the plea hearing, the following interchange occurred between the district judge and Brown:
Q. Do you understand the terms of the plea agreement are merely
recommendations to the court, that I can reject the recommendations without
permitting you to withdraw your plea of guilty and impose a sentence that is
more severe than you may anticipate?
A. Understand, your honor.
...
Q. Do you understand the maximum possible penalties that could be imposed
in your case consist of a mandatory minimum of five years[’] imprisonment
up to 30 years[’] imprisonment . . . ?
A. Understand.
Q. Have you and your attorney talked about the sentencing guidelines?
A. Yes, sir.
Q. Do you understand the guidelines are merely advisory?
A. I do.
4
An offense qualifies as a “crime of violence” under the residual clause of U.S.S.G.
§ 4B1.2(a)(2) if the offense “involves conduct that presents a serious potential risk of physical
injury to another.”
4

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classified Brown as a career offender based on his offense of conviction being a
“crime of violence” and his prior aggravated burglary convictions. Application of
the career offender provision produced a total offense level of thirty-one, a
criminal history category of VI, and a Guidelines range of 188 to 235 months.5
At sentencing, Brown’s counsel objected to the application of the career
offender provision, in part arguing that Brown, when pleading guilty, lacked notice
regarding the potential applicability of the provision. The district court overruled
the objection, concluding that Brown knew at the time he pled guilty that he faced
thirty years’ imprisonment.

Considering Brown’s advisory Guidelines range

inclusive of the career offender provision, as well as the 18 U.S.C. § 3553(a)
(2000) factors, the district court imposed a sentence of 235 months’ imprisonment.
On direct appeal, Brown raised two challenges related to the issues
presented in this appeal: (1) the district court did not comply with Fed. R. Crim. P.
11 by not advising Brown of the possible applicability of the career offender
provision and the resulting impact on his Guidelines range; and (2) his guilty plea
was invalid under the Due Process Clause because the plea was induced by the
Government’s misrepresentation regarding the inapplicability of the career

5

Absent application of the career offender provision, the revised presentence report would have
set Brown’s offense level at twenty-two, his criminal history category at IV, and his Guidelines
range at sixty-three to seventy-eight months.
5

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offender provision. 6 See Brown I, 526 F.3d at 706-08. In support of his second
challenge, Brown supplemented the district court record with an affidavit from
plea counsel attesting to counsel’s understanding of the terms of the plea
agreement, including the inapplicability of the career offender provision. Brown’s
counsel also attested to Brown’s unwillingness to plead guilty absent the consensus
about the inapplicability of the career offender provision. As to the first challenge,
this Court concluded that Fed. R. Crim. P. 11 does not require that a district court
inform a defendant about the possible application of specific provisions in the
Guidelines. Id. at 706-07. As to the second challenge, this Court determined that
the challenge required further factual development; thus, this Court concluded that
the challenge was more appropriately presented through a 28 U.S.C. § 2255
motion. Id. at 707-08.
Brown filed a petition for a writ of certiorari. During the pendency of the
certiorari petition, the United States Supreme Court decided Chambers v. United
States, 555 U.S. 122, 129 S. Ct. 687, 172 L. Ed.2d 484 (2009), which further
defined what constituted an offense that “involves conduct that presents a serious

6

Brown also argued that (1) the district court failed to comply with Fed. R. Crim. P. 11 by not
explaining all the elements of a § 2422(b) offense before accepting his plea; (2) the application
of Searcy violated his due process rights; (3) a jury, not the district court, had to determine
whether his prior Ohio burglary convictions were crimes of violence under U.S.S.G. § 4B1.2(a);
(4) the district court did not address each of the 18 U.S.C. § 3553(a) sentencing factors,
rendering his sentence unreasonable; and (5) “pervasive bias and a high degree of antagonism”
by the district judge infected his sentencing hearing. Brown I, 526 F.3d at 704-06, 708-15
(internal quotation marks omitted) (citation omitted).
6

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potential risk of physical injury to another.” 7

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The Supreme Court granted

Brown’s certiorari petition, vacated this Court’s decision in Brown I, and remanded
the case for further consideration in light of Chambers. Brown v. United States,
556 U.S. 1150, 129 S. Ct. 1668, 173 L. Ed.2d 1050 (2009). On remand, this Court
held that Searcy did not conflict with Chambers, and affirmed Brown’s conviction
and sentence. United States v. Brown (Brown II), 329 F. App’x 253, 254 (11th Cir.
2009). Brown’s petition for rehearing and rehearing en banc and his petition for a
writ of certiorari were denied. See Brown v. United States, 559 U.S. 1071, 130 S.
Ct. 2093, 176 L. Ed.2d 729 (2010); United States v. Brown, 373 F. App’x 42 (11th
Cir. 2009).
Within a year of his conviction and sentence becoming final, Brown filed the
28 U.S.C. § 2255 motion at issue in this appeal. Brown’s § 2255 motion raised
three claims for relief: (1) the district court improperly applied the career offender
provision when calculating his Guidelines range, (2) his plea did not comport with
the Due Process Clause because it was induced by a misrepresentation by the
Government regarding the applicability of the career offender provision; and (3)
his plea was not knowing and voluntary in light of the medication he was taking at
7

Chambers involved the residual clause in the definition of “violent felony” in the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) (“ACCA”). Decisions construing and defining
“violent felony” in the ACCA frequently apply to the interpretation of the residual clause in the
definition of “crime of violence” in U.S.S.G. § 4B1.2(a)(2) because the two provisions use
nearly identical language. Spencer v. United States, 773 F.3d 1132, 1136 (11th Cir. 2014) (en
banc).
7

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the time of his plea. In support of his second claim for relief, Brown relied on the
affidavit from his plea counsel that Brown presented to this Court on direct appeal.
Brown and the Government, relying on 28 U.S.C. § 636(c) (2006), consented to a
magistrate judge conducting all proceedings, including entry of final judgment.
The magistrate judge issued an order denying relief on Brown’s 28 U.S.C.
§ 2255 motion. As to the propriety of Brown’s designation as a career offender
under the Guidelines, the magistrate judge held that Brown was procedurally
barred from raising this issue. As a first and second alternative holding, the
magistrate judge concluded that none of the cases cited by Brown abrogated
Searcy and that even if cases from this Court abrogated Searcy, interests of finality
outweighed a change in law regarding the applicability of a provision in the
Guidelines. As a third alternative holding, the magistrate judge concluded that
Brown did not suffer any prejudice from any possible error in applying the career
offender provision because the district court concluded that the 235-month
sentence was reasonable under the 18 U.S.C. § 3553(a) factors. As to Brown’s due
process claim, the magistrate judge held that (1) Brown was procedurally barred
from raising the issue because this Court considered the issue on direct appeal; (2)
no meaningful misrepresentation occurred because the plea agreement did not bind
the United States Probation Office or the district court with respect to any of the
stipulations, including the implicit inapplicability of the career offender provision;
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and (3) Brown failed to establish that, absent the Government’s representation
about the inapplicability of the career offender provision, he would have proceeded
to trial. Finally, in denying relief, the magistrate judge noted that the absence of
any “true factual disputes” eliminated the need to conduct an evidentiary hearing.
Brown noted his appeal from the magistrate judge’s order. During the
pendency of his appeal, Brown filed a Fed. R. Civ. P. 60(b) motion in the district
court, in which he questioned whether the parties could validly consent to a
magistrate judge issuing a final order in a 28 U.S.C. § 2255 proceeding. The
magistrate judge denied the Rule 60(b) motion but issued a certificate of
appealability pertaining to a magistrate judge’s authority in a § 2255 proceeding.
Brown noted an appeal from the denial of the Rule 60(b) motion, and this Court
consolidated his two appeals. This Court determined that 28 U.S.C. § 636(c) does
not grant a magistrate judge the authority to enter a final judgment in a 28 U.S.C.
§ 2255 proceeding because the proceeding is not a “civil matter.” Brown v. United
States (Brown III), 748 F.3d 1045, 1058-71 (11th Cir. 2014).

Consequently,

without considering the merits of the claims for relief in Brown’s § 2255 motion,
this Court remanded the matter to the district court. Id. at 1071.
On remand, the district court construed the magistrate judge’s order as a
report and recommendation (“R&R”). After considering Brown’s objections to the
R&R, the district court issued a paperless order adopting the R&R, denying relief,
9

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and denying a certificate of appealability. In so doing, the district court held that
Searcy remained the law of this Circuit, that Brown could not relitigate the
applicability of the career offender provision, and that Brown’s due process claim
“fail[ed] to state a compelling basis for relief.” Brown noted an appeal to this
Court. During the pendency of his appeal, the United States Supreme Court
decided Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 192 L. Ed.2d 569
(2015), in which it upheld a constitutional vagueness challenge to the residual
clause of the ACCA. With Johnson’s potential applicability to the definition of
“crime of violence” in the Guidelines in mind, this Court granted a certificate of
appealability on two questions:
(1) Whether the district court erred in denying Brown’s claim that he
was wrongly sentenced as a career offender, given that 18 U.S.C.
§ 2422(b) is not a “crime of violence” for purposes of the career
offender enhancement?
(2) Whether the district court erred in denying Brown’s due process
claim that his guilty plea was induced by the misrepresentation that he
would not be sentenced as a career offender? 8
Subsequent to issuance of the certificate of appealability, this Court decided
United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), in which it held that
Johnson was not applicable to the career offender provision in the Sentencing
Guidelines because the vagueness doctrine applies only to statutes that define

8

The prevailing certificate of appealability in this appeal replaced an initial certificate of
appealability that raised only the second question.
10

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crimes and fix punishments rather than the Guidelines, which are advisory by their
very nature. Id. at 1193-96. Shortly before oral argument in this case, the United
States Supreme Court granted certiorari in Beckles v. United States, which
presented the constitutional question answered by this Court in Matchett. See 136
S. Ct. 2510 (2016). Oral arguments having occurred and the Supreme Court
having issued its decision in Beckles, 137 S. Ct. 886 (2017), this Court renders
judgment as to Brown’s second appeal from the denial of his § 2255 motion.
II. STANDARD OF REVIEW
We review de novo the district court’s legal determinations underlying its
denial of relief on a 28 U.S.C. § 2255 motion and review its factual determinations
for clear error. Phillips v. United States, 849 F.3d 988, 992 (11th Cir. 2017).
III.
A.

ANALYSIS

COA QUESTION 1: Application of Career Offender Provision of

Guidelines
Brown raises two arguments for why his offense of conviction is not a
“crime of violence” under U.S.S.G. § 4B1.2(a) and for why he is entitled to relief
in the form of resentencing. First, Brown argues that the constitutional vagueness
argument that controlled in Johnson applies to the residual clause of the definition
of “crime of violence” in U.S.S.G. § 4B1.2(a)(2) such that his 18 U.S.C. § 2422(b)
offense is not a “crime of violence” where Searcy held that the offense only
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qualifies as a “crime of violence” through the residual clause. The United States
Supreme Court’s recent decision in Beckles disposes of Brown’s first argument
because Beckles, like this Court’s decision in Matchett, rejected an identical
vagueness challenge to the residual clause in U.S.S.G. § 4B1.2(a)(2). Specifically,
the Supreme Court held that the Guidelines are not susceptible to a constitutional
vagueness challenge because the Guidelines merely advise the sentencing court as
to an appropriate sentence for the defendant but “do not fix the permissible range
of sentences.” Beckles, 137 S. Ct. at 892. Accordingly, unlike the residual clause
in the definition of “violent felony” in the ACCA, the residual clause in the
definition of “crime of violence” in U.S.S.G. § 4B1.2 is not void for vagueness and
continues to provide a basis for classifying an offense as a “crime of violence.”
Second, Brown argues that an intervening change of law results in his
§ 2422(b) offense no longer qualifying as a crime of violence under the residual
clause in U.S.S.G. § 4B1.2(a)(2) and, further, that the intervening change of law
provides a basis for relief within the framework of 28 U.S.C. § 2255. In support of
his argument, Brown cites this Court’s decisions in United States v. Harris, 608
F.3d 1222 (11th Cir. 2010), United States v. Owens, 672 F.3d 966 (11th Cir. 2012),
United States v. Chitwood, 676 F.3d 971 (11th Cir. 2012), and Matchett, for the
proposition that the analysis employed in Searcy to determine that a § 2422(b)
offense qualifies as a “crime of violence” did not consider whether a § 2422(b)
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offense is “roughly similar” to the offenses specifically listed in U.S.S.G.
§ 4B1.2(a)(2) and that if this Court undertook that analysis, a § 2422(b) offense
would not qualify as a “crime of violence.” An intervening change of law can
provide a basis for relief under § 2255 if the change in law has a constitutional
dimension or if it involves a change in the interpretation of a law of the United
States. Davis v. United States, 417 U.S. 333, 342-45, 94 S. Ct. 2298, 41 L. Ed.2d
109 (1974) (citing 28 U.S.C. § 2255(a)). In light of the Supreme Court’s decision
in Beckles, the supposed intervening change of law relied on by Brown presents, at
most, a change as to the interpretation of a law that would render the application of
the Guidelines by the district court incorrect, but “a misapplication of advisory
sentencing guidelines” is not reviewable under § 2255. Spencer, 773 F.3d at 113840.
Where an intervening change of law involves the interpretation of a law of
the United States, the intervening change in law only provides a basis for relief on
collateral review if not applying the change constitutes a “fundamental defect
which inherently results in a complete miscarriage of justice.” Davis, 417 U.S. at
346 (citation omitted). An error at sentencing rises to the level of a “fundamental
defect” and “results in a complete miscarriage of justice” if the prisoner “is either
actually innocent of his crime or . . . a prior conviction used to enhance his
sentence has been vacated.”

Spencer, 773 F.3d at 1139.
13

Conversely, a

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misapplication of the Guidelines does not constitute a “fundamental defect” or
“result[] in a complete miscarriage of justice” and the erroneous application of a
Guideline provision will not serve as a basis for relief in a collateral proceeding
under § 2255. Id. at 1135, 1139-42. This is because the Guidelines are merely
advisory and any error in calculating the Guidelines produces neither an illegal
sentence in excess of the statutory maximum penalty nor a sentence that could not
be reimposed at resentencing. Id. at 1139-40. Furthermore, the extent of an
increase to a defendant’s Guidelines range as a result of the misapplication of a
Guidelines provision, including the misapplication of the career offender provision,
does not alter the conclusion that a Guidelines error does not constitute a
“fundamental defect” or “result[] in a complete miscarriage of justice.” See id. at
1142 (rejecting claim that misapplication of career offender provision constituted a
fundamental defect or a complete miscarriage of justice).

Accordingly, even

assuming that Brown’s 18 U.S.C. § 2422(b) offense does not qualify as a “crime of
violence” under the analysis employed in Harris, Owens, Chitwood, and Matchett,
any change in the law with respect to the applicability of the career offender
provision does not provide a basis for relief through a 28 U.S.C. § 2255
proceeding.

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COA QUESTION 2: Plea and Due Process
Brown contends that his plea is invalid under the Due Process Clause

because he did not enter a knowing, voluntary, and intelligent plea where the
Government’s misrepresentation that the career offender provision in the
Guidelines did not apply induced him to enter his plea. In support of his argument,
Brown relies on this Court’s holdings in Finch v. Vaughn, 67 F.3d 909 (11th Cir.
1995), and In re Arnett, 804 F.2d 1200 (11th Cir. 1986).
As an initial matter, we find it instructive to discuss the district court’s
conclusion that Brown is procedurally barred from raising this claim because he
presented the claim on direct appeal. Typically, a prisoner is procedurally barred
from relitigating an issue on collateral review that he already raised in his direct
appeal. Stoufflet v. United States, 757 F.3d 1236, 1242 (11th Cir. 2014). Where,
however, facts essential to a claim are not in the appellate record, the general rule
in favor of a procedural bar does not apply and the issue may be raised on
collateral review to permit further factual development. See Bousley v. United
States, 523 U.S. 614, 621-22, 118 S. Ct. 1604, 140 L. Ed.2d 828 (1998) (citing
Waley v. Johnston, 316 U.S. 101, 62 S. Ct. 964, 86 L. Ed. 1302 (1942) (per
curiam)). One example of a claim typically requiring further factual development
through a § 2255 proceeding is a claim based on ineffective assistance of counsel.

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Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 155 L. Ed.2d 714
(2003).
On direct appeal, this Court likened Brown’s due process claim to a claim
based on ineffective assistance of counsel because the claim relied on facts not
before the district court, including the affidavit from Brown’s plea counsel. Brown
I, 526 F.3d at 707-08. In so doing, this Court stated, “As with an ineffective
assistance of counsel claim, Brown’s [due process] claim is best resolved in a
collateral proceeding under 28 U.S.C. § 2255, where the district court will have an
opportunity to convene a hearing, entertain the relevant evidence, and make
findings of fact.” Id. at 708. Accordingly, this Court has already signaled that
Brown’s due process claim falls within the exception to the general procedural rule
prohibiting a prisoner from relitigating an issue presented on direct appeal.
Therefore, to the extent that the district court adopted the magistrate judge’s
conclusion that Brown was procedurally barred from raising his due process claim,
the district court erred. 9

9

To the extent the district court did not intend to adopt this conclusion of the magistrate judge,
we observe that the paperless order issued by the district court did not specifically reject any of
the magistrate judge’s conclusions. We further take pause to note that the issuance of a paperless
order, generally devoid of reasoning, does little to advance the interests of justice or the record
for purposes of appeal where the report and recommendation adopted is not free of error, even if
any errors ultimately do not alter the result of the proceeding. This is particularly true here
because the magistrate judge’s R&R not only incorrectly concluded that Brown’s due process
argument was procedurally barred but also incorrectly suggests that Brown did not present any
evidence of his intent to proceed to trial if the career offender provision applied and further
reached debatable conclusions as to whether Brown’s first claim of error was procedurally barred
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Concluding that Brown is not procedurally barred from raising his due
process claim, we now consider the merits of the claim. When a defendant enters a
plea of guilty, he waives certain constitutional rights. Finch, 67 F.3d at 914.
“‘Waivers of constitutional rights not only must be voluntary but must be knowing,
intelligent acts done with sufficient awareness of the relevant circumstances and
likely consequences.’” Id. (quoting Brady v. United States, 397 U.S. 742, 748, 90
S. Ct. 1463, 25 L. Ed.2d 747 (1970)). Furthermore, a defendant is entitled to
presume that the government has negotiated the plea agreement in good faith and
that he may rely on promises by the government when assessing the likely
consequences of his plea.

Id. at 915-16.

Thus, a misrepresentation or false

promise by the government may prevent a defendant from appreciating the likely
consequences of his guilty plea. See id.
Brown’s due process argument fails for two reasons.

First, Brown’s

decision to enter a plea of guilty was not induced by a misrepresentation of the
nature necessary to support a due process challenge. Finch, a seminal case in this
Circuit regarding misrepresentations and due process at the plea stage, involved a
promise by a state prosecutor that incorrectly stated the law and could not be

and whether, if there was error, any error was harmless because the district court alternatively
concluded that Brown’s 235-month sentence was reasonable under the 18 U.S.C. § 3553(a)
factors and notwithstanding Brown’s Guidelines range. Proper discussion of these matters by the
district judge would have helped to narrow the issues before this Court on appeal and would have
demonstrated to Brown that the district court duly considered his arguments.
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fulfilled at the time the state prosecutor made the promise. Id. Here, although the
Government expressed its belief that the career offender provision did not apply in
Brown’s case, the Government’s belief was not contrary to any precedent of this
Court at the time of the Government’s representation. In this respect, while the
Government’s position on the applicability of the career offender provision was
later deemed inaccurate by Searcy, the Government neither misrepresented the
state of the law at the time Brown entered the plea agreement nor intentionally
deceived Brown regarding his likely advisory Guideline range if he pled guilty.
Second, the Government’s expression of its belief about the applicability of
the career offender provision does not constitute the type of representation that can
give rise to a due process claim. This is because the representation pertained to the
calculation of Brown’s Guidelines range, which the plea agreement and the district
court informed Brown he could not rely upon to determine what his sentence
would be given the advisory nature of the Guidelines. To that point, the plea
agreement specifically advised Brown that the stipulations as to the Guidelines
calculations were not binding on the United States Probation Office or the district
court. In this respect, the Government’s representation regarding the applicability
of the career offender provision is easily distinguishable from the representations
in Finch and Arnett because the representations at issue in those two cases
involved specific and fixed aspects of the defendant’s sentence. See Finch, 67
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F.3d at 915-17 (finding due process violation where, at a combined change of plea
and sentencing hearing, the state prosecutor and the sentencing court represented
that defendant’s state sentence would be concurrent to his federal sentence even
though the state court lacked authority to run the state sentence concurrent to the
federal sentence); Arnett, 804 F.2d at 1203-04 (concluding that government effort
to seize more assets through forfeiture than listed in the plea agreement would
result in due process violation and enforcing plea agreement as written to avoid
violation). Furthermore, Brown’s presentence report clearly reminded the district
court of the stipulations in the plea agreement regarding the calculations of
Brown’s Guidelines, and it was within the district court’s discretion to consider the
stipulations when selecting Brown’s sentence. Accordingly, where there is no
dispute that Brown understood that he faced a thirty-year statutory maximum
penalty and that any Guidelines range was only advisory, Browns due process
claim fails.
IV.

CONCLUSION

For the foregoing reasons, we AFFIRM the denial of relief on Brown’s 28
U.S.C. § 2255 motion.

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Case: 15-10025

Date Filed: 05/05/2017

Page: 20 of 20

JILL PRYOR, Circuit Judge, concurring in result:
I concur in the result in this case because binding precedent, Beckles v.
United States, 137 S. Ct. 886 (2017), and Spencer v. United States, 773 F.3d 1132
(11th Cir. 2014) (en banc), dictates that we must affirm the denial of relief on Mr.
Brown’s 28 U.S.C. § 2255 motion.

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