Pierre v. United States of America
Filing
16
OPINION AND ORDER denying 15 Motion for Reconsideration or in the alternative to sentence without the benefit of career criminal status. A certificate of appealability is denied. Signed by Judge John E. Steele on 6/15/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANSY WAPNER PIERRE,
Petitioner,
v.
Case No: 2:14-cv-306-FtM-29CM
Case No. 2:12-CR-130-FTM-29UA
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner's Motion for
Reconsideration or in the Alternative Nunc Pro Tunc Sentence
Without the Benefit of Career Criminal Status (Cv. Doc. #15; Cr.
Doc. #65) filed on May 8, 2017.
No response has been filed, and
the time to respond has expired.
On April 24, 2017, the Court issued an Opinion and Order (Cv.
Doc. #13) denying petitioner’s Motion Under 28 U.S.C. Section 2255
to Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1) on the merits.
More specifically, the Court
found that the possession of cocaine conviction was not used as a
basis for his career offender status, and further found that
vehicle
flight
was
a
sentencing guidelines.
qualifying
crime
of
violence
under
the
Petitioner now seeks reconsideration based
on a new argument not previously raised.
The decision to grant a motion for reconsideration is within
the sound discretion of the trial court and will only be granted
to correct an abuse of discretion.
Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).
“The
courts
have
delineated
three
major
grounds
justifying
reconsideration of such a decision: (1) an intervening change in
controlling law; (2) the availability of new evidence; (3) the
need
to
correct
clear
error
or
prevent
manifest
injustice.”
Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.
Fla. 1994).
Furthermore, a motion for reconsideration does not
provide an opportunity to simply reargue, or argue for the first
time, an issue the Court has already determined.
Court opinions
are “not intended as mere first drafts, subject to revision and
reconsideration at a litigant's pleasure.” Quaker Alloy Casting
Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).
“It is well settled that a legal claim or argument that has not
been briefed is deemed abandoned and its merits will not be
addressed.”
Kight v. IPD Printing & Distrib., Inc., 427 F. App'x
753, 755 (11th Cir. 2011) (citing Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1330 (11th Cir. 2004)).
Petitioner argues that the other predicate offense used for
the career offender enhancement, namely, a robbery conviction from
2002, was more than 10 years old at the time of his sentencing on
August 13, 2013, and therefore should not have been considered.
- 2 -
First, the Court finds that this argument is not timely presented
because this is the first time the issue is being presented to the
Court, and petitioner has not otherwise obtained permission to
file a second or successive petition.
28 U.S.C. § 2255(f).
this reason alone, the motion will be denied.
For
Alternatively, the
motion is also denied on the merits.
The Indictment (Cr. Doc. #5) in this case charged that the
instant offense began on or about June 15, 2011.
For the predicate
offense of robbery, petitioner was sentenced to 20.8 months of
imprisonment on December 6, 2002.
Guidelines
Manual
§
Under United States Sentencing
4A1.2(e),
“[a]ny
prior
sentence
of
imprisonment exceeding one year and one month that was imposed
within fifteen years of the defendant’s commencement of the instant
offense is counted.
Also count any prior sentence of imprisonment
exceeding one year and one month, whenever imposed, that resulted
in
the
defendant
fifteen-year
being
period.”
incarcerated
U.S.
4A1.2(e) (emphasis added).
during
Sentencing
any
part
Guidelines
of
such
Manual
§
As the robbery fell within this time
period, there is no merit to petitioner’s argument.
Accordingly, it is hereby
ORDERED:
Petitioner's Motion for Reconsideration or in the Alternative
Nunc Pro Tunc Sentence Without the Benefit of Career Criminal
- 3 -
Status (Cv. Doc. #15; Cr. Doc. #65) is DENIED.
A certificate of
appealability is also denied.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2017.
Copies:
Petitioner
AUSA
- 4 -
15th
day
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