Brand v. United States of America

Filing 34

ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER JUDGMENT against Brand and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/29/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

CASE NO. 8:11-cr-380-T-23AEP
8:13-cv-2103-T-23AEP

ZAVIEN BRAND
/

ORDER
Brand’s moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the
validity of his several convictions, for which he is imprisoned for a total of 372
months. An earlier order (Doc. 28) adopts the magistrate judge’s report and
recommendation and denies Brand’s claim asserted in Ground One that trial counsel
rendered ineffective assistance by not appealing. Grounds Two, Three, and Four
remain. Brand is entitled to no relief on the remaining grounds because each lacks
merit and because Brand waived each claim when he pleaded guilty.
The earlier order summarized this action as follows (Doc. 28 at 1–2 and 5):
1. Brand was charged in a fourteen count superceding
indictment for his involvement in a series of incidents where
(1) he possessed firearms and ammunition and (2) he sold
firearms and cocaine base to an undercover officer. More
specifically, Brand faced six counts of distribution of cocaine
base, four counts of being a felon in possession of a firearm, and
four counts of possessing a firearm in furtherance of a drug
crime. Brand pleaded guilty to ten of the counts without the
benefit of a plea agreement but he was permitted to withdraw
his guilty plea to one of the counts. The magistrate judge
determined that “in return for the United States’ agreement to
dismiss ‘all unresolved counts,’ Brand later elected to plead

guilty pursuant to a plea agreement to Count Fourteen.”
(Doc. 26 at 2) As a consequence, Brand pleaded guilty to four
counts of distribution of cocaine base, four counts of being a
felon in possession of a firearm, and two counts of possessing a
firearm in furtherance of a drug trafficking crime.
2. Brand was sentenced (1) to concurrent terms of
imprisonment for one year on eight of the counts, (2) to a
minimum mandatory consecutive term of imprisonment for five
years, and (3) to a minimum mandatory consecutive term of
imprisonment for twenty-five years, for a total of 372 months.
3. Under the terms of the plea agreement Brand waived his
right to appeal his sentence or to challenge it collaterally.
....
Moreover, the decision to enter into a plea agreement after
pleading guilty to several counts without the benefit of a plea
agreement is supported by former counsel’s explanation of the
defense’s strategy, which changed when Brand changed his
mind because he hoped to reduce his sentence by cooperating
with the United States. Under the terms of the plea agreement
the United States dismissed additional counts (including two
counts that carried a minimum mandatory term of twenty-five
years’ imprisonment), allowed Brand to withdraw the guilty
plea to a count that was not the subject of the plea agreement,
and agreed to allow Brand to cooperate in hopes of reducing his
sentence. The plea agreement — including the requisite appeal
waiver — was part of a package both to resolve all of Brand’s
charges and to limit Brand’s potential sentence.

Each of the three remaining grounds challenges Brand’s 25-year minimum
mandatory sentence. Brand (1) challenges the district court’s jurisdiction to impose a
25-year minimum mandatory sentence and claims the indictment was allegedly faulty
(Ground Two) and (2) challenges counsel’s effectiveness during both the plea
negotiation and the sentencing (Grounds Three and Four). Brand’s guilty plea
forecloses each challenge.

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GUILTY PLEA
Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a
non-jurisdictional defect:
[A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty
plea.

This waiver of rights precludes most challenges to the conviction. “[W]hen the
judgment of conviction upon a guilty plea has become final and the offender seeks to
reopen the proceeding, the inquiry is ordinarily confined to whether the underlying
plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569
(1989). See also United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003)
(“Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional
defects in the proceedings.”) and Wilson v. United States, 962 F.2d 996, 997 (11th Cir.
1992) (“A defendant who enters a plea of guilty waives all non-jurisdictional
challenges to the constitutionality of the conviction, and only an attack on the
voluntary and knowing nature of the plea can be sustained.”). A guilty plea waives a
claim based on a pre-plea event, including a claim of ineffective assistance of counsel.
Wilson, 962 F.2d at 997. Consequently, the entry of a guilty plea waives a claim that
occurred before entry of the plea, including both a substantive claim and a purported
failing of counsel but neither a jurisdictional challenge nor a voluntariness challenge
to the plea.
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INEFFECTIVE ASSISTANCE OF COUNSEL
Brand claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas,
46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an
ineffective assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its
two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
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professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct.”
466 U.S. at 690. Strickland requires that “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
Brand must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” 466 U.S. at 691–92. To meet this burden, Brand must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690–91. Brand cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . We are not interested in grading lawyers’
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performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent
or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting
Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751
(1983) (counsel has no duty to raise a frivolous claim).
Remaining Grounds:
In Ground Two Brand alleges that the district court lacked jurisdiction to
impose a 25-year minimum mandatory sentence because the indictment failed to
charge that a second or subsequent conviction under 18 U.S.C. § 924(c) would
require the district court to impose an enhanced sentence. Brand argues the
following in his motion to vacate (Doc. 1 at 5):
The U.S. Supreme has recently held, and in essence overturned
prior Supreme Court precedent and circuit court precedent, that
any fact, that by law increases a minimum mandatory must be
charged in the indictment and proved to a jury beyond a
reasonable doubt. Because 18 U.S.C. 924 statue requires
enhanced mandatory minimum sentences under various
subsection(s), they are now elements that must be charged in
the indictment.

In Ground Three Brand alleges that counsel rendered ineffective assistance by
“failing to apprise him of the fact that he would be receiving a 25 year minimum
mandatory-consecutive stacked sentence . . . .” (Doc. 1 at 7) In Ground Four Brand
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alleges that counsel rendered ineffective assistance by not objecting to the 25-year
mandatory sentence.1 Brand waived challenging each ground, and each ground lacks
merit.2
Brand asserts entitlement to the retroactive application of Alleyne v. United
States, 133 S. Ct. 2151, 2155 (2013), which holds that any fact that increases the
mandatory minimum sentence is an element of the offence that must be found
beyond a reasonable doubt.
In Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L.
Ed. 2d 524 (2002), this Court held that judicial factfinding that
increases the mandatory minimum sentence for a crime is
permissible under the Sixth Amendment. We granted certiorari
to consider whether that decision should be overruled. 568 U.S.
___, 133 S. Ct. 420, 184 L. Ed. 2d 252 (2012).
Harris drew a distinction between facts that increase the
statutory maximum and facts that increase only the mandatory
minimum. We conclude that this distinction is inconsistent
with our decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), and with the original
meaning of the Sixth Amendment. Any fact that, by law,
1

In this ground Brand also alleges that counsel was ineffective at sentencing for not
“provid[ing] mitigating evidence in support of a more lenient sentence.” (Doc. 1 at 8) Brand
identifies no evidence that counsel should have presented. This conclusory assertion supports no
relief.
2

Brand’s original reply includes the conclusory statement that, under the “Alleyne-rule,”
he is “actually innocent of the minimum mandatory 25 years imposed upon him.” (Doc. 13 at 8)
The statement appears nowhere else. Nonetheless, under Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.
1992), cert. denied, 513 U.S. 1162 (1995), the statement is construed as asserting entitlement to relief.
The claim is both procedurally defaulted and without merit. “Because we conclude that McKay
procedurally defaulted his claim by failing to raise it on direct appeal and that the actual innocence
exception does not apply to McKay’s claim of legal innocence, we AFFIRM the district court’s
denial of McKay’s § 2255 motion.” McKay v. United States, 657 F.3d 1190 (11th Cir. 2011)
(capitalization original) (rejecting claim of actual innocence of career offender sentence), cert. denied,
133 S. Ct. 112 (2012). See Hill v. United States, 569 Fed. App’x 646, 648 (11th Cir. 2014) (applying
McKay). Brand asserts no cause and prejudice to overcome the procedural default, actual innocence
is inapplicable to overcome the procedural default, and under the terms of the plea agreement, as
discussed later, Brand waived challenging his sentence.
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increases the penalty for a crime is an “element” that must be
submitted to the jury and found beyond a reasonable doubt. See id., at 483, n. 10, 490, 120
S. Ct. 2348. Mandatory minimum sentences increase the penalty for a crime. It follows,
then, that any fact that increases the mandatory minimum is an “element” that must be
submitted to the jury.

Both Apprendi and Alleyne specifically recognize that, under Almendarez–Torres
v. United States, 523 U.S. 224 (1998), a conviction is an exception to this beyond-areasonable-doubt requirement. Apprendi, 530 U.S. at 490 (“Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”); Alleyne, 133 S. Ct. at 2160 (“Because the parties do not contest [AlmendarezTorres]’s vitality, we do not revisit it for purposes of our decision today.”). See also
United States v. Flowers, 531 Fed. App’x 975, 985 (11th Cir. 2013) (“Flower’s reliance
on Alleyne is unavailing. Alleyne did not address prior-conviction sentencing
enhancements. Instead, Alleyne merely extended the rationale of Apprendi, which
itself noted that the Sixth Amendment did not require <the fact of a prior conviction’
to be submitted to a jury and proved beyond a reasonable doubt.”).
Although Apprendi, Alleyne, and Almendarez-Torres use the term “prior
conviction,” convictions in a single proceeding will support an enhanced sentence, as
United States v. Irby, 477 Fed. App’x 727, 728 (11th Cir. 2012),3 explains:
We next turn to Irby’s contention that Count 5 is not second or
subsequent conviction under § 924(c)(1)(C). If a defendant
receives a “second or subsequent” conviction under § 924(c), he
is subject to a mandatory consecutive sentence of 25 years for
3

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
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that second conviction. 18 U.S.C. § 924(c)(1)(C). A district
court may deem one of two § 924(c) convictions charged in the
same indictment as a “second or subsequent” conviction under
§ 924(c)(1)(C). United States v. Phaknikone, 605 F.3d 1099,
1111–12 (11th Cir. 2010) (noting that we “long ago rejected”
the argument that a district court cannot impose a 25-year
sentence under § 924(c)(1)(C) for a conviction contained in the
same indictment as the other § 924(c) conviction); Deal v. United
States, 508 U.S. 129, 134–35, 113 S. Ct. 1993, 1997–98, 124 L.
Ed. 2d 44 (1993). Thus, the district court did not err in
considering one of Irby’s two § 924(c) convictions a second or
subsequent conviction under § 924(c)(1)(C) even though the
two § 924(c) convictions were charged in the same indictment.

The plea agreement cautioned Brand that he faced a “mandatory minimum
sentence of twenty-five years and a maximum term of imprisonment of life, which
may not run concurrently with any other term of imprisonment imposed upon the
defendant . . . .” (Doc. 53 at 1) Additionally, under the terms of the plea agreement,
Brand “agrees that this Court has jurisdiction and authority to impose any sentence
up to the statutory maximum and expressly waives the right to appeal defendant’s
sentence or to challenge it collaterally . . . .” (Doc. 53 at 11) When he pleaded guilty
Brand admitted to understanding the potential sentence and the appeal waiver.
(Doc. 69 at 18–19 and 24) Although Brand faced a possible sentence of life
imprisonment, the district court, in formulating an appropriate sentence, varied
downward from a guidelines range of 84–105 months to concurrent sentences of only
twelve months for counts one, two, four, five, seven, nine, ten, and thirteen. As
statutorily required, each one year sentence is followed by a consecutive sentence of
five years for count three and a consecutive sentence of twenty-five years for count

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fourteen. Brand’s total sentence of 372 months is based on his actions, not counsel’s
alleged inaction.
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk must enter a judgment against Brand, enter a copy of this order
in the criminal action, and close this case.

DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Brand is not entitled to a certificate of appealability (“COA”). A prisoner
moving under Section 2255 has no absolute entitlement to appeal a district court’s
denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, Brand must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues he
seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show
that reasonable jurists would debate either the merits of the claims or the procedural
issues, Brand is entitled to neither a certificate of appealability nor an appeal in forma
pauperis.

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Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Brand must obtain authorization from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 29, 2017.

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