Brown v. Warden, FCC Coleman - Low
Filing
18
ORDER: Petitioner Robert Griffin Brown's Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (CV Doc. 1) is DISMISSED. The Clerk is directed to close this case. Signed by Judge James S. Moody, Jr on 2/5/2015. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ROBERT GRIFFIN BROWN,
Petitioner,
v.
Case No: 5:14-cv-452-Oc-30PRL
Crim. Case No: 8:03-cr-294-T-30EAJ
UNITED STATES OF AMERICA,
Respondent.
________________________________/
ORDER
THIS CAUSE comes before the Court upon Petitioner Robert Griffin Brown’s
Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (CV Doc. 1). Brown
challenges his 188-month sentence pursuant to the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e), on his conviction for possession of a firearm by a convicted felon
(Count III). 1 (CV Doc. 14). The Court, having reviewed the pleadings, arguments, and
record, and having held a hearing on December 4, 2014, concludes that Brown’s motion
should be dismissed.
1
Originally, Brown also challenged his 188-month sentences imposed under United States
Sentencing Guideline § 4B1.4 on his convictions for possession of fifty or more grams of cocaine
base with intent to distribute (Count I) and possession of cocaine with intent to distribute (Count
II) (CV Doc. 2), but he withdrew those direct challenges after recognizing that they were precluded
by the Eleventh Circuit’s decision in Gilbert v. United States (Gilbert II), 640 F.3d 1293 (11th Cir.
2011) (en banc) (holding that a guidelines-based sentencing error on a sentence below the statutory
maximum is not cognizable on a § 2241 petition). (CV Doc. 14 at 4). See also Spencer v. United
States, 773 F.3d 1132 (11th Cir. 2014) (en banc) (holding that the petitioner was barred from
challenging his sentence on collateral review based upon misapplication of the sentencing
guidelines because his sentence was below the statutory maximum).
BACKGROUND
On February 6, 2004, Brown pled guilty, without a plea agreement, to the following
counts: (1) possession of fifty or more grams of cocaine base with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (Count I); (2) possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count II); (3)
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)
(Count III); and (4) possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count IV). 2 (CR Docs. 57, 58). Pursuant to the United
States Sentencing Guidelines in effect at the time Brown was sentenced, 3 Brown was
subject to sentencing on Counts I through III with a total offense level of 29 and a criminal
history category of III, which resulted in a guideline imprisonment range between 108 to
135 months. 4 (PSR at 3, 7). However, on Count III, Brown’s sentence was subject to
enhancement under the ACCA, § 924(e), based upon the following predicate offenses: (1)
a 1982 conviction for sale and possession of cocaine; (2) a 1982 conviction for sale and
possession of cocaine; and (3) a 1988 conviction for carrying a concealed firearm. (PSR
at 4).
The ACCA designation resulted in a minimum-mandatory sentence of fifteen years
and an increase in the statutory maximum from ten years to life on Count III. See 18 U.S.C.
2
Brown raises no challenge to his sentence on Count IV, which requires a
minimum-mandatory sentence of five years’ imprisonment that must be run consecutively to any
other sentences imposed. 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii).
3
In 2004, the sentencing guidelines were mandatory.
4
On Count I, however, Brown faced a minimum-mandatory sentence of ten years under 21
U.S.C. § 841(b)(1)(A).
2
§ 924(a)(2), (e). Also, because Brown was classified as an armed career criminal, he was
subject to the armed-career-criminal sentencing guideline, U.S.S.G. § 4B1.4. As a result,
he was assigned an enhanced total offense level of 31 and an enhanced criminal history
category of VI, which increased the guideline imprisonment range on Counts I through III
to 188 to 235 months. (PSR at 4, 7, 12). Accordingly, on May 21, 2004, Brown was
sentenced to concurrent terms of 188 months’ imprisonment on Counts I through III and
to a consecutive term of sixty months’ imprisonment on Count IV. (CR Doc. 68 at 9). All
counts were to be followed by five years’ supervised release. (Id.). In sentencing Brown,
the Court expressed reservations about the length of Brown’s sentence but concluded that
it was required to impose a sentence within the guidelines. 5 (Id. at 7-8).
Brown did not file a direct appeal of his convictions and sentences. On March 22,
2005, Brown filed a motion to vacate his sentences pursuant to 28 U.S.C. § 2255, alleging
several claims of ineffective assistance of counsel. See Brown v. United States, No.
8:05-cv-607-JSM-EAJ (M.D. Fla. 2005) (Doc. 1). On July 21, 2006, the Court denied
Brown’s § 2255 motion. Id. (Doc. 15). Brown appealed the denial of his § 2255 motion
to the Eleventh Circuit Court of Appeals and filed an application for a certificate of
appealability. Id. (Docs. 17, 18). Both this Court and the Eleventh Circuit denied Brown’s
request for a certificate of appealability. Id. (Docs. 20-22).
5
At sentencing the Court commented, “Seems like twenty years is a lot of time for Mr.
Brown . . . . I don’t know what I can do about it.” (CR Doc. 68 at 7). Consequently, the Court
told Brown, “I’m going to give you the minimum I can under the guidelines.” (Id. at 8).
3
On December 18, 2013, several years after the United States Supreme Court’s
decision in Begay v. United States, 553 U.S. 137 (2008), Brown filed an untimely notice
of appeal. (CR Doc. 91). Thereafter, Brown was represented by appointed counsel, who
realized that the appropriate remedy for the relief sought by Brown was a motion pursuant
to § 2241. (CV Doc. 1 at 2). Accordingly, Brown moved to voluntarily dismiss his appeal,
and, instead, filed the instant petition. (Id.). Brown argues that his sentence for possession
of a firearm by a convicted felon (Count III) was improperly enhanced under the ACCA
beyond the statutory maximum because, pursuant to Begay and United States v. Archer,
531 F.3d 1347 (11th Cir. 2008), Brown does not have the requisite three predicate offenses
to be considered an armed career criminal. (CV Doc. 14). Brown also contends that
because he is entitled to be resentenced on Count III, the Court should also revisit Brown’s
sentences on Counts I and II under the sentence package doctrine. (Id.).
Respondent counters that the Court lacks jurisdiction to consider Brown’s § 2241
petition because, although his sentence on Count III exceeds the statutory maximum, the
overall length of his aggregate detention based upon his other sentences is lawful. 6 (CV
Doc. 11). Thus, Respondent argues that resentencing Brown as to Count III would have
no effect on the length of his detention. (Id.).
6
Respondent also argued that Brown was procedurally defaulted from raising this claim
(Doc. 11), but subsequently filed a notice informing the Court that it waived its defense of
procedural default (Doc. 17). Because the procedural-default rule is not jurisdictional, it may be
waived by the government. See Bryant v. Warden, 738 F.3d 1253, 1261 (11th Cir. 2013). Thus,
the Court concludes that it is unnecessary to address whether Brown’s claim is procedurally
defaulted.
4
ANALYSIS
I. The Relevant Law
A. The Savings Clause
Generally, § 2241 provides a mechanism by which prisoners can challenge the
execution rather than the validity of their sentences. See Bryant, 738 F.3d at 1290 (citing
Antonelli v. Warden, 542 F.3d 1348, 1352 (11th Cir. 2008)). If a prisoner wishes to
challenge the validity of his or her sentence after it has become final, the appropriate means
is through a motion pursuant to § 2255. 7 See Sawyer v. Holder, 326 F.3d 1363, 1365 (11th
Cir. 2003). Under § 2255(e), however, commonly referred to as the “savings clause,” a
petitioner may file a § 2241 motion if the petitioner can demonstrate that § 2255 was
“inadequate or ineffective to test the legality of his [or her] detention.” 28 U.S.C.
§ 2255(e); see also Bryant, 738 F.3d at 1256, 1262, 1288. Whether the savings clause may
“open the portal” to a § 2241 petition is a jurisdictional issue that must be addressed before
reaching the merits of the § 2241 petition. Id. at 1262; see also Williams v. Warden, 713
F.3d 1332, 1343 (11th Cir. 2013).
Because Brown seeks to invoke the savings clause, he must establish the following
factors to confer jurisdiction upon this Court: (1) throughout his sentencing, direct appeal,
and first § 2255 proceeding, his claim was specifically foreclosed by Eleventh Circuit
precedent; (2) after his first § 2255 proceeding, a United States Supreme Court decision
7
A petitioner may not file a second or successive § 2255 motion without certification from
the appropriate court of appeals and only under a limited set of circumstances. See 28 U.S.C.
§ 2255(h).
5
overturned that circuit precedent; (3) the new rule announced in the Supreme Court
decision applies retroactively on collateral review; (4) as a result of the retroactively
applicable rule, his sentence exceeds the statutory-maximum penalty; and (5) the savings
clause reaches his claim of illegal detention above the statutory maximum. Bryant, 738
F.3d at 1274 (synthesizing the savings-clause tests articulated in Wofford v. Scott, 177 F.3d
1236 (11th Cir. 1999), Gilbert II, 640 F.3d 1293, and Williams, 713 F.3d 1332).
B. The ACCA
Usually, an individual convicted of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g) faces a potential statutory-maximum sentence of ten years’
imprisonment and three years’ supervised release. See 18 U.S.C. §§ 924(a)(2), 3559(a)(3),
3583(b)(2). But, under the ACCA, an individual who was previously convicted of three
violent felonies or serious drug offenses, is subject to a minimum sentence of fifteen years’
imprisonment, a maximum sentence of life imprisonment, and five years’ supervised
release. 18 U.S.C. §§ 924(e)(1), 3559(a)(1), 3583(b)(1). The ACCA defines a “violent
felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that
. . . has as an element the use, attempted use, or threatened use of physical force against the
person of another; . . . or is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). Brown was subject to sentencing under the ACCA
because he had two previous convictions for serious drug offenses and one previous
conviction for a violent felony, carrying a concealed firearm. Brown now challenges the
6
use of his previous conviction for carrying a concealed firearm to satisfy the ACCA
prerequisites. 8
At the time Brown was sentenced and when he filed his § 2255 motion, binding
Eleventh Circuit precedent specifically held that carrying a concealed firearm was a violent
felony for ACCA purposes. See United States v. Hall, 77 F.3d 398 (11th Cir. 1996); United
States v. Gilbert, 138 F.3d 1371 (11th Cir. 1998). However, four years after Brown’s
sentence became final and two years after he filed his § 2255 motion, the United States
Supreme Court issued its decision in Begay, which clarified that a “violent felony” within
the meaning of the ACCA includes only felonies involving “purposeful, violent, and
aggressive conduct.” 553 U.S. at 145. The Begay decision abrogated the Eleventh
Circuit’s decisions in Hall and Gilbert. See United States v. Canty, 570 F.3d 1251, 1252
(11th Cir. 2009); Archer, 531 F.3d 1347. As a result, carrying a concealed firearm is no
longer considered a violent felony for ACCA purposes.
II. Discussion
For the savings clause of § 2255(e) to open the portal to review Brown’s § 2241
petition, Brown must establish the five Bryant requirements. Respondent concedes that
Brown has established the first three Bryant factors. First, throughout Brown’s sentencing
and first § 2255 proceeding, Eleventh Circuit precedent squarely foreclosed his claim that
carrying a concealed firearm was not a violent felony for ACCA purposes. See Hall, 77
F.3d 398; Gilbert, 138 F.3d 1371. Second, well after Brown’s § 2255 proceeding ended,
8
Brown does not dispute that his two 1982 convictions for sale and possession of cocaine
qualify as serious drug offenses under the ACCA. (CV Doc. 2).
7
Begay and Canty overturned Hall’s binding precedent. See Canty, 570 F.3d at 1255
(“[C]arrying a concealed weapon is not a violent felony that may be used as a predicate
conviction to enhance a defendant’s sentence under the ACCA.”). Third, in Bryant, the
Eleventh Circuit held that Begay applies retroactively on collateral review. 738 F.3d at
1277. However, according to Respondent, Brown cannot satisfy the fourth Bryant factor,
i.e., he cannot show that his sentences exceed the statutory maximum. Thus, whether
Brown’s claim can proceed under § 2241 turns upon whether his sentences exceed the
statutory maximum.
Technically, Brown’s sentence on Count III exceeds the statutory maximum on that
count. Without the ACCA enhancement, Brown is subject to a ten-year statutory maximum
on Count III; therefore, his sentence of 188 months clearly exceeds the statutory maximum.
Nevertheless, Respondent argues that Brown’s aggregate sentences, which includes his
lawful 188-month sentences on Counts I and II, 9 renders the error with regard to his
sentence on Count III harmless in the context of a § 2241 proceeding. In response, Brown
counters that because of the error as to Count III, the Court, in accordance with the sentence
package doctrine, can resentence Brown as to not only Count III, but Counts I and II as
well.
Following the Eleventh Circuit’s decision in Bryant, each case, including Bryant,
granting a § 2241 petition for a sentence that exceeds the statutory maximum has only
9
Count I has statutory maximum of life in prison and Count II has a statutory maximum of
twenty years. See § 841(b)(1)(A)(iii), (b)(1)(C). Thus, Brown’s 188-month sentences on Counts
I and II do not exceed the statutory maximums for those counts.
8
considered claims challenging a single conviction and sentence, rather than a claim, like
the one at hand, involving multiple convictions and sentences. See Moore v. Warden, 568
F. App’x 838 (11th Cir. 2014); Bryant, 738 F. 3d 1253; Mackey v. Warden, 739 F.3d 657
(11th Cir. 2014); Manley v. Unnamed Respondent, No. 1:14-CV-142-TWT, 2014 WL
3397129 (N.D. Ga. July 10, 2014). Thus, to decide this issue, the Court considers the
language of the savings clause.
Specifically, § 2255(e) provides that a petition may be brought pursuant to the
savings clause if a prior § 2255 motion was “inadequate or ineffective to test the legality
of [the petitioner’s] detention.” (Emphasis added). The use of the term “detention”
indicates that the concern of § 2255(e) is not whether a particular sentence itself is legal,
but whether the overall detention is legal. Here, although Brown’s sentence on Count III
is an improper sentence that exceeds the statutory maximum, his overall detention does
not. 10
Stated differently, Brown is not “being held without authorization by any
congressional statute,” and his detention is legal. Bryant, 738 F.3d at 1283 (emphasis
added). The Court recognizes that Brown’s designation as an armed career criminal
subjected him to application of the armed-career-criminal guideline, U.S.S.G. § 4B1.4,
which enhanced the then-mandatory guideline range for his sentences on Counts I and II.
But the Eleventh Circuit’s precedent squarely forecloses any claim that the savings clause
reaches a guideline-error sentencing claim. See Gilbert II, 640 F.3d 1293.
10
Such a strict reading accords not only with cannons of statutory interpretation, but also
with the Eleventh Circuit’s proclamation that “in enacting § 2255(e) Congress clearly restricted
the subject-matter jurisdiction of the federal courts” to hear § 2241 petitions. Williams, 713 F.3d
at 1340.
9
Even if the Court found that Brown’s statutory-maximum-exceeding sentence on
Count III opened the portal for review under § 2255(e), Brown’s victory would be short
lived. In granting relief to the petitioner in Bryant, the Eleventh Circuit stated,
[A]ll that is required to correct [the] statutory error is a reduction to the
statutory maximum of 10 years by the district court where the defendant is
incarcerated. See 18 U.S.C. § 924(a)(2); see also U.S.S.G. § 5G1.1(a)
(providing that if the statutory maximum sentence is less than the guidelines
range, the statutory maximum controls). There is no need for the § 2241
court or the sentencing court to hold a resentencing hearing or to further
determine the appropriate sentencing range within the statutory maximum
penalty. After all, any § 2241 challenge to a sentence that is already below
the authorized statutory maximum could not open the § 2255(e) portal. See
Gilbert II, 640 F.3d at 1323. And, [a petitioner] in a § 2241 petition is not
able to attack any misapplication of the guidelines below the statutory
maximum. See id.
Bryant, 738 F.3d at 1288. In response to Judge Martin’s partial dissent, the Eleventh
Circuit explained,
Importantly, under Gilbert II, [a petitioner] cannot obtain a § 2241 writ
through the § 2255(e) portal based on any guidelines-based sentencing errors.
Bryant is entitled to a grant of the writ only because his sentence exceeds the
statutory maximum penalty and only to that extent.
Our majority opinion’s express holding that the habeas remedy is limited to
a sentence reduction to the statutory maximum penalty is precisely what
helps open the § 2255(e) portal for Bryant without running afoul of our en
banc and other circuit precedent, the statutory bar on successive habeas
motions, and the finality interests that Congress incorporated into AEDPA’s
provisions. The § 924 error that opens the portal to a § 2241 claim and the
nature of the § 2241 relief are inextricably intertwined in this case of
statutory sentencing error.
Id. at 1290. Based on Bryant and Gilbert II, if the Court granted Brown’s § 2241 petition
as to Count III, the Court would be limited to reducing Brown’s sentence on Count III to
the statutory maximum of ten years, and the Court could not resentence Brown on Counts
10
I through III. The Court notes, however, that but for the decisions in Gilbert II and Bryant
dictating the applicable remedy in this case, it would be inclined to resentence Brown on
Counts I through III to effectuate its original sentencing intent since its intent at the time
of sentencing was thwarted by the then-mandatory sentencing guidelines. As it stands, any
relief to which Brown would be entitled under § 2241 would amount to nothing more than
a hollow victory as he would still have to serve his 188-month sentences on Counts I and II.
A reduction of Brown’s sentence on Count III would not affect the overall length of his
detention.
The Court also notes that as a result of Brown’s erroneous designation as an armed
career criminal under U.S.S.G. § 4B1.4, Brown is not entitled to relief under any of the
retroactive amendments to the United States Sentencing Guidelines, such as Amendment
782, which retroactively lowered the base offense levels applicable to certain drug
offenses. 11 See United States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009) (in
deciding whether a guideline amendment applies, “a district court may not reconsider any
of its original sentencing determinations other than the provision subject to the
amendment”). If Brown was not subject to sentencing under the ACCA guideline,
U.S.S.G. § 2D1.1 rather than § 4B1.4 would have applied to his sentence, and he would be
entitled to the relief provided by the retroactive sentencing amendments applicable to
11
In fact, on February 28, 2008, and December 19, 2011, Brown filed motions pursuant to
18 U.S.C. § 3582(c)(2), requesting a reduction of his sentence in accordance with Amendments
706 and 750, respectively, but the Court denied his motions because the amendments did not apply
to him on account of his designation as an armed career criminal pursuant to U.S.S.G. § 4B1.4.
(CR Docs. 76, 79, 86, 88).
11
§ 2D1.1, like Amendment 782. The Court finds it unfortunate that although Brown was
erroneously designated as an armed career criminal, he is not entitled to any relief under
either § 2241 or § 3582(c)(2).
If some means existed by which the Court could
appropriately provide Brown a lower sentence, it would do so.
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.
Petitioner Robert Griffin Brown’s Petition for a Writ of Habeas Corpus
Under 28 U.S.C. § 2241 (CV Doc. 1) is DISMISSED.
2.
The Clerk is directed to close this case.
DONE and ORDERED in Tampa, Florida, this 5th day of February, 2015.
Copies furnished to:
Counsel/Parties of Record
S:\OCALA\14-452 Brown v. USA.2241.docx
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