Broomfield v. United States of America

Filing 13

OPINION AND ORDER denying 12 Motion for Bond. Signed by Judge John E. Steele on 8/11/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES F. BROOMFIELD, JR.,
Petitioner,
v.

Case No: 2:16-cv-42-FtM-29CM
Case No. 2:13-CR-55-FTM-29UAM

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner's Motion for
Bond Pending 2255 (Doc. #12) filed on August 9, 2017.

Petitioner

seeks bond pending a determination of his § 2255 petition because
he has a likelihood of success on the merits, and exceptional
circumstances

exist.

Petitioner

argues

that

if

the

ACCA

enhancement to his sentence is removed, and his sentence reduced,
he would be eligible for release to a halfway house next month.
Petitioner argues that the second degree felony conviction for
possession of cocaine in Lee County Circuit Court pursuant to Fla.
Stat. § 893.12(1)(a) is no longer a qualifying predicate offense
because the mens rea element was eliminated, and mere possession
is not a qualifying felony offense for purposes of the ACCA.
Petitioner argues that without this conviction, he does not have
three qualifying prior felony drug convictions.

This specific

argument was not raised in the pending 2255, and therefore was not

previously briefed.

Even if the Court were to consider the

argument, it is without merit and foreclosed by United States v.
Smith,
Section 893.13(1) of the Florida Statutes is
both a “serious drug offense,” 18 U.S.C. §
924(e)(2)(A), and a “controlled substance
offense,”
U.S.S.G.
§
4B1.2(b).
Neither
definition requires that a predicate state
offense includes an element of mens rea with
respect
to
the
illicit
nature
of
the
controlled substance.
775 F.3d 1262, 1268 (11th Cir. 2014).

Petitioner also argues that

he is not a flight risk, he was a caregiver and provider before
his incarceration, and that he has successfully completed 10
classes and avoided disciplinary action while incarcerated.

This

additional information does not support a finding that release on
bond pending review is appropriate in this case.
Accordingly, it is hereby
ORDERED:
Petitioner's Motion for Bond Pending 2255 (Doc. #12) is
DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2017.

Copies:
Petitioner
AUSA

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