Hinton v. United States of America
OPINION AND ORDER granting in part and denying in part re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) Criminal Case No. 2:15-cr-173-FtM-38CM. The Court grants Hinton's motion as to Count Three, but it denies the remaini ng counts as moot and without prejudice. The Clerk is directed to appoint Hinton counsel from the Criminal Justice Act Panel of this District for purposes of re-sentencing. The Clerk is further directed to schedule a sentencing hearing for February 20, 2018, at 1:30 p.m. The United States Probation Office is directed to file an amended Presentence Report on or before February 13, 2018. Signed by Judge Sheri Polster Chappell on 11/27/2017. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THEODORE HINTON, JR.,
Case No: 2:17-cv-229-FtM-38CM
UNITED STATES OF AMERICA,
OPINION AND ORDER1
This matter comes before the Court on Petitioner Theodore Hinton, Jr.’s Motion
under 28 U.S.C. § 2255 (Doc. 1)2 and memorandum of law (Doc. 11). The United States
has filed a response (Doc. 9) and supplemental response (Doc. 14). This matter is thus
ripe for review.
Per a plea agreement, Hinton pled guilty to possessing with the intent to distribute
cocaine in violation of federal law. (Crim. Doc. 1; Crim. Doc. 56). The Presentence
Report (“PSR”) determined that Hinton was a career offender under U.S.S.G. § 4B1.1
because he had two prior drug convictions for trafficking cocaine and delivering the same
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References to filings in this civil case are cited as “Doc. [docket number].” But
references to Hinton’s corresponding criminal case are cited as “Crim. Doc. [docket
drug. (Crim. Doc. 75 at ¶ 34). Pertinent here, the PSR lacked facts underlying Hinton’s
trafficking conviction under Fla. Stat. § 893.135(1)(b). (Id. at ¶ 52; Doc. 14-1 at 2, 4). And
the Government did not introduce Shepard documents at Hinton’s sentencing hearing
because he did not object to the trafficking conviction serving as a predicate offense for
the career offender enhancement. (Crim. Doc. 75 at 23; Doc. 9 at 3, 15). The Court thus
sentenced Hinton to 151 months’ imprisonment. (Crim. Doc. 80). And Hinton did not
But Hinton now collaterally attacks his sentence on grounds of ineffective
assistance of counsel. (Doc. 1; Doc. 11). Because his claims all relate to his trafficking
offense serving as a predicate offense, his sole request for relief is to “[v]acate and
[r]emand this case for resentencing without the ‘Career Offender Enhancement’ under
4B1.1.” (Doc. 1 at 16).
The Government concedes Hinton’s third ineffective assistance of counsel claim
has merit. (Doc. 14). In Count Three, Hinton argues that his attorney did not object to
the PSR’s use of his trafficking offense as a predicate offense for the career offender
enhancement. (Doc. 1 at 10). Because of Hinton’s § 2255 motion, the Government has
tried to locate Shepard-approved documents to support the enhancement. (Doc. 14).
This is because Fla. Stat. § 893.135 is a divisible statute requiring the modified categorical
approach. See United States v. Shannon, 631 F.3d 1187 (11th Cir. 2011). But the
Government has come up empty handed. It can show neither that Hinton was convicted
of two drug offenses nor that he was properly sentenced as a career offender. (Doc. 14
at 2-3). The Government thus concedes to Hinton’s motion on Count Three. (Id. at 3).
Upon careful review of the applicable law, the parties’ arguments, and the record,
the Court will grant Hinton’s motion as to Count Three and resentence Hinton. Because
the Court is granting Hinton his requested relief, the Court will deny as moot (and without
prejudice) the remaining claims in his motion.
Accordingly, it is now
(1) Theodore Hinton, Jr.’s Motion under 28 U.S.C. § 2255 (Doc. 1) is GRANTED
in part and DENIED in part. The Court grants Hinton’s motion as to Count
Three, but it denies the remaining counts as moot and without prejudice.
(2) The Clerk is DIRECTED to appoint Hinton counsel from the Criminal Justice
Act Panel of this District for purposes of re-sentencing.
(3) The Clerk is further DIRECTED to schedule a sentencing hearing for February
20, 2018, at 1:30 p.m.
(4) The United States Probation Office is DIRECTED to file an amended
Presentence Report on or before February 13, 2018.
DONE and ORDERED in Fort Myers, Florida this 27th day of November 2017.
All Parties of Record
United States Probation Office
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