Anderson v. United States of America

Filing 9

ORDER denying 1 Motion to Vacate, Set Aside, or Correct Sentence. The Clerk shall close the file and term any pending motions. Signed by Judge Timothy J. Corrigan on 4/16/2018. (JHC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
REGINALD ANDERSON,
Petitioner,
vs.

Case No.:

UNITED STATES OF AMERICA,
Respondent.

3:15-cv-1142-J-32MCR
3:06-cr-309-J-32MCR

/
ORDER

This case is before the Court on Petitioner Reginald Anderson’s Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, Motion to
Vacate), Supporting Memorandum (Civ. Doc. 1-1, Memorandum), and Supplement
(Civ. Doc. 6). 1 The United States has moved to dismiss the Motion to Vacate (Civ. Doc.
7, Motion to Dismiss), and Petitioner has responded (Civ. Doc. 8, Response). Pursuant
to Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has
determined that an evidentiary hearing is not necessary to decide the petition. See
Aron v. United States, 291 F.3d 708, 714–15 (11th Cir. 2002) (an evidentiary hearing
on a § 2255 petition is not required when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently frivolous, or if in assuming that

Citations to the record in the underlying criminal case, United States vs.
Reginald Anderson, Case No. 3:06-cr-309-J-32MCR, will be denoted as “Crim. Doc. __.”
Citations to the record in the civil § 2255 case, Case No. 3:15-cv-1142-J-32MCR, will
be denoted as “Civ. Doc. __.”
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the facts he alleges are true, he still would not be entitled to any relief). For the
reasons set forth below, Petitioner’s Motion to Vacate is due to be denied.
I.

Background

Petitioner was charged with one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Crim. Doc. 1, Indictment).
Petitioner pled guilty to the charge under a written plea agreement. (Crim. Doc. 36,
Plea Agreement). As part of the Plea Agreement, Petitioner acknowledged that he had
the prior convictions necessary to qualify for a 15-year mandatory minimum sentence
under the Armed Career Criminal Act (ACCA) 2, consisting of: (1) a prior conviction for
sale or delivery of cocaine, on or about November 16, 2001; (2) a prior conviction for
possession of cocaine with intent to sell, on or about January 6, 2004; and (3) a prior
conviction for sale or delivery of cocaine, on or about November 18, 2004. (Id. at 14-15,
¶¶ 2.a, 2.c, 2.d; see also Presentence Investigation Report at ¶¶ 12, 26, 30, 31; Crim.
Doc. 56, Sentencing Transcript at 4-6). 3 The Court sentenced Petitioner to the
mandatory minimum of 180 months in prison, followed by a five-year term of
supervised release. (Crim. Doc. 51, Judgment).
Petitioner did not file a notice of appeal. Thus, his conviction and sentence
became final on August 15, 2007, ten business days after the entry of

Ordinarily, a conviction under 18 U.S.C. § 922(g) for possession of a firearm by
a convicted felon carries a ten-year maximum prison sentence. However, if a defendant
has three or more prior convictions for a “violent felony” or a “serious drug offense,”
the ACCA imposes a 15-year mandatory minimum. 18 U.S.C. § 924(e).

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Each of the prior convictions were under Florida law.
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judgment. See Adams v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir. 1999) (when
a defendant does not file a notice of appeal, the conviction and sentence become final
when the time for filing a notice of appeal expires). 4
More than eight years later, Petitioner filed the instant Motion to Vacate. As a
threshold matter, Petitioner argues that the Motion is timely under 28 U.S.C. §§
2255(f)(3) and 2255(f)(4) because he filed it within one year of the Supreme Court’s
decisions in Mellouli v. Lynch, 135 S. Ct. 1980 (2015), McFadden v. United States, 135
S. Ct. 2298 (2015), and Johnson v. United States, 135 S. Ct. 2551 (2015). (Civ. Doc. 11 at 6-9). Petitioner claims that his prior drug convictions do not qualify as ACCA
predicates in light of these decisions. Second, he argues that his base offense level
under U.S.S.G. § 2K2.1(a)(2) is unconstitutional in light of Johnson and McFadden.
Petitioner argues that his prior drug convictions do not qualify as “controlled
substance offenses” under § 2K2.1 because § 893.13(1)(a), Florida Statutes, imposes
no mens rea requirement with respect to the illicit nature of the controlled substance.
(Civ. Doc. 1-1 at 10-11). Third, Petitioner argues that his ACCA sentence is
unconstitutional because (a) Johnson held that the ACCA’s residual clause is
unconstitutionally vague, and (b) his prior drug convictions do not qualify as “serious
drug offenses” under the ACCA because, again, § 893.13(1)(a), Fla. Stat. imposes no
mens rea requirement with respect to the illicit nature of the drug. (Civ. Doc. 1-1 at
12-22).

Under the version of Fed. R. App. P. 4(b)(1)(A) then in effect, a defendant had
ten business days from the entry of judgment to file a notice of appeal.
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The United States responds that Petitioner’s Motion to Vacate “is both untimely
and without merit.” (Civ. Doc. 7 at 1). The United States first contends that the Motion
is untimely because Petitioner filed it eight years after his conviction and sentence
became final. (See id. at 2). However, assuming that Mellouli, McFadden, and Johnson
render the Motion to Vacate timely, the United States responds that “even if Anderson
were sentenced today, he would still qualify as an armed career criminal under 18
U.S.C. § 924(e).” (Id. at 3). The United States responds that three of Petitioner’s prior
drug convictions remain “serious drug offenses” for purposes of the ACCA, and that
Mellouli, McFadden, and Johnson have no impact on that conclusion.
The United States is correct. For the reasons below, Petitioner’s classification
as an armed career criminal is unaffected by Mellouli, McFadden, and Johnson, and
his Motion to Vacate is due to be denied.
II.

Discussion

Under Title 28, United States Code, Section 2255, a person in federal custody
may move to vacate, set aside, or correct his sentence. Section 2255 permits such
collateral challenges on four specific grounds: (1) the imposed sentence was in violation
of the Constitution or laws of the United States; (2) the court did not have jurisdiction
to impose the sentence; (3) the imposed sentence exceeded the maximum authorized
by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C
§2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error
that are so fundamental as to cause a complete miscarriage of justice will warrant
relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86
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(1979). A claim that a petitioner was incorrectly sentenced under the ACCA is
cognizable on collateral review. Spencer v. United States, 773 F.3d 1132, 1143 (11th
Cir. 2014) (en banc).
The Court assumes, for the sake of argument, that Petitioner’s Motion to Vacate
is timely under 28 U.S.C. § 2255(f). Nevertheless, the Motion lacks merit because
Petitioner was properly sentenced under the ACCA based on his prior convictions for
three “serious drug offenses.” And because Petitioner’s sentence was based on the
ACCA’s mandatory minimum, not U.S.S.G. § 2K2.1, Petitioner’s challenge to the base
offense level is moot.
Under the ACCA, a felon in possession of a firearm who has at least three prior
convictions “for a violent felony or a serious drug offense, or both, committed on
occasions different from one another,” is subject to a 15-year mandatory minimum. 18
U.S.C. § 924(e)(1).
The ACCA defines the term “serious drug offense” to mean:
(i)

an offense under the Controlled Substances Act (21 U.S.C. 801 et
seq.), the Controlled Substances Import and Export Act (21 U.S.C.
951 et seq.), or chapter 705 of title 46, for which a maximum term
of imprisonment of ten years or more is prescribed by law; or

(ii)

an offense under State law, involving manufacturing, distributing,
or possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances
Act (21 U.S.C. 802)), for which a maximum term of imprisonment
of ten years or more is prescribed by law.

Id., § 924(e)(2)(A) (emphasis added). As the statute makes clear, a drug offense need
not be a crime under the federal Controlled Substances Act to qualify as a “serious
drug offense.” A drug offense under state law also qualifies if it meets three criteria:
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(1) the crime involves manufacturing, distributing, or possessing with intent to
manufacture or distribute, (2) the crime involves a controlled substance defined in 21
U.S.C. § 802, and (3) the crime could be punished by ten years or more in prison.
Here, Petitioner had three prior convictions under Florida law that met these
criteria. As noted above, Petitioner had two separate convictions in Florida for the sale
or delivery of cocaine, and a third conviction in Florida for possession of cocaine with
intent to distribute. Each of these is an offense under § 893.13(1)(a), Fla. Stat., which
provides that “a person may not sell, manufacture, or deliver, or possess with intent
to sell, manufacture, or deliver, a controlled substance.” Where, as here, the offense
involved cocaine – which is a controlled substance under § 893.03(2)(a)4, Fla. Stat. –
the crime is punishable as a second-degree felony, meaning the maximum term of
imprisonment is 15 years. § 775.082(3)(d), Fla. Stat. Thus, each of these three
convictions met the criteria for a “serious drug offense” because (1) each involved
distributing or possessing with intent to distribute 5, (2) each involved a controlled
substance (cocaine) that is listed in 21 U.S.C. § 802, and (3) each offense was
punishable by a term of imprisonment of 10 years or more. See 18 U.S.C. § 924(e)(2)(A).
Indeed, the Eleventh Circuit has held, over and over again, that a conviction under §
893.13(1)(a), Fla. Stat., for selling, delivering, or possessing with intent to sell or
deliver cocaine is both a “serious drug offense” under the ACCA as well as a “controlled
substance offense” under the United States Sentencing Guidelines. E.g., United States

“[S]elling is a form of distributing.” United States v. Russell Johnson, 570 F.
App’x 852, 857 (11th Cir. 2014).
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v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014); United States v. Lenzy Johnson, 663
F. App’x 738, 740 (11th Cir. 2016); United States v. Williams, 605 F. App’x 833, 83537 (11th Cir. 2015); Russell Johnson, 570 F. App’x at 856-57. Thus, Petitioner had
three prior convictions that clearly qualified as a “serious drug offense” under the
ACCA, and as such, he was properly sentenced as an armed career criminal.
The Supreme Court’s decisions in McFadden, Mellouli, and Johnson have no
impact on this conclusion. Petitioner cites McFadden and Mellouli for the proposition
that a conviction under § 893.13(1)(a), Fla. Stat., cannot qualify as a “serious drug
offense” because Florida eliminated any mens rea requirement with respect to the
illicit nature of the drug. In McFadden, the Supreme Court addressed the mens rea
required for a conviction under 21 U.S.C. § 841(a)(1), when the substance at issue is
an analogue to a federally controlled substance. 135 S.Ct. at 2302. The Supreme Court
held that § 841(a)(1) required the government to prove the defendant knew he was
dealing with a controlled substance, meaning he either knew the substance was
controlled under the Controlled Substances Act or Analogue Act or knew the specific
features of the substance that made it a controlled-substance analogue. Id. McFadden
does not help Petitioner, however, “because it did not address the mens rea
requirement for serious drug offenses under the ACCA or controlled-substance
offenses under the career-offender guidelines.” Jones v. United States, 650 F. App’x
974, 977 (11th Cir. 2016). Moreover, the Eleventh Circuit has expressly rejected the
notion that a conviction under § 893.13(1)(a), Fla. Stat., does not qualify as a “serious
drug offense” because of the lack of a mens rea requirement. Smith, 775 F.3d at 1267-

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68. “No element of mens rea with respect to the illicit nature of the controlled
substance is expressed or implied by either [18 U.S.C. § 924(e)(2)(A) or U.S.S.G. §
4B1.2(b)].” Id. at 1267. Thus, “[s]ection 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.” Id. at 1268.
Mellouli is no more helpful. In Mellouli, a defendant argued that his Kansas
conviction for drug paraphernalia was not a qualifying conviction under the
deportation statute, 8 U.S.C. § 1227. 135 S.Ct. at 1985. The Supreme Court held that
the defendant's prior conviction did not support deportation because no element of the
defendant's Kansas conviction connected with one of the controlled substances defined
in 21 U.S.C. § 802. Id. at 1991. Significantly, Mellouli did not involve the meaning or
application of the ACCA’s “serious drug offense” provision, but instead whether a state
conviction involved one of the controlled substances defined in 21 U.S.C. § 802 for
purposes of deportation. See id. at 1984. Thus, “[t]he Mellouli decision is not on point
both because it involves a state statute very different from Florida's § 893.13(1)(a),
and also because it involves the immigration statute, again very different from the
ACCA.” Lenzy Johnson, 663 F. App’x at 740. Mellouli did not abrogate Smith, which
forecloses Petitioner’s argument that any of his convictions under § 893.13(1)(a) are
not for a “serious drug offense.” Id. As the Eleventh Circuit recently affirmed, “Smith
remains good law.” United States v. Washington, 707 F. App’x 687, 691 (11th Cir.

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2017) (citing United States v. Pridgeon, 853 F.3d 1192, 1198 (11th Cir. 2017), cert.
denied, 138 S. Ct. 215 (2018)).
Finally, Johnson, 135 S. Ct. 2551, has no bearing either on Petitioner’s sentence.
The Supreme Court held in Johnson that the ACCA’s residual clause, which is part of
the definition of a “violent felony,” is unconstitutionally vague. 135 S. Ct. at 2257-58.
However, the Supreme Court made clear to limit its holding to the residual clause,
such that the remaining portions of the ACCA remain intact. Id. at 2563. Thus,
Johnson affords no relief to those who, like Petitioner, were sentenced as an armed
career criminal on the basis of three or more prior convictions for a serious drug
offense. United States v. Darling, 619 F. App’x 877, 880 n.5 (11th Cir. 2015).
Accordingly, Petitioner was properly sentenced under the ACCA due to his
three prior convictions under § 893.13(1)(a), Fla. Stat. The Supreme Court’s decisions
in McFadden, Mellouli, and Johnson offer him no refuge. And because Petitioner was
given the applicable mandatory minimum, his challenge to the base offense level
under U.S.S.G. § 2K2.1(a) is a moot point. United States v. Zacherle, 689 F. App’x 467,
469 (9th Cir. 2017) (imposition of mandatory minimum sentence rendered moot any
other guidelines issues, because the court could not have imposed a lower sentence)
(citing Melendez v. United States, 518 U.S. 120, 126-27 (1996)); United States v.
Whitelaw, 376 F. App’x 584, 592 (6th Cir. 2010) (imposition of mandatory minimum
sentence mooted defendant’s challenge to a role enhancement under the guidelines). 6

In his response to the government’s Motion to Dismiss, Petitioner also states,
for the first time, that his prior drug convictions do not qualify as “serious drug
offenses” because (a) he purportedly pled guilty to lesser-included offenses, and (b) the
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Therefore, having considered each of Petitioner’s claims for relief, and finding
each one to lack merit, it is hereby ORDERED:
1. Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence (Civ. Doc. 1) is DENIED.
2. The Clerk shall enter judgment in favor of the United States and against
Petitioner, and close the file.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to
appeal a district court’s denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (COA). Id. “A [COA] may issue…
only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. at § 2253(c)(2). To make such a showing, Petitioner “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

government did not submit Shepard documents to support the prior convictions. (Civ.
Doc. 8 at 1-2). However, Petitioner may not raise new claims for the first time in a
reply brief without having obtained leave to amend. Snyder v. United States, 263 F.
App’x 778, 779-80 (11th Cir. 2008). Moreover, these new allegations are procedurally
defaulted. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). Petitioner
could have challenged the prior convictions at the sentencing hearing or on direct
appeal, but he did neither. Instead, he conceded that he had the prior convictions
necessary to support the ACCA enhancement. (Crim. Doc. 36 at 14-15; Crim. Doc. 56
at 6).
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‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Petitioner has not made the requisite showing in these circumstances. Because
Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in
forma pauperis.
DONE AND ORDERED at Jacksonville, Florida this 16th day of April, 2018.

TIMOTHY J. CORRIGAN
United States District Judge

lc 19
Copies:
Counsel of record
Pro se petitioner

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