Cottman v. United States of America

Filing 18

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment for the Government and then to close this case. Signed by Judge Susan C Bucklew on 5/3/17. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LESLEY WILLIAM COTTMAN
Petitioner,
v.

CASE NO. 8:16-cv-1575-T-24TBM
8:02-cr-397-T-24TBM

UNITED STATES OF AMERICA,
/
ORDER
This case is before the Court on Petitioner Lesley William Cottman’s Motion to
Vacate pursuant to 28 U.S.C. § 2255 (Civ. Doc. 1), Supporting Memorandum (Civ. Doc.
2), and Supplemental Memorandum pursuant to Johnson v. United States, 135 S. Ct. 2551
(2015) (Civ. Doc. 13). The United States filed a response to the § 2255 motion (Civ. Doc.
16), to which Petitioner filed a reply (Civ. Doc. 17). After due consideration, the Court
finds that an evidentiary hearing is not necessary, and Petitioner’s motion should be
denied.
I. Background
Petitioner pled guilty to conspiracy to distribute and possess with intent to
distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846 and §
841(b)(1)(A)(ii) (count one), possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A) (count two), and felon in possession of a

firearm in violation of 18 U.S.C. § 922(g) and § 924(e)(1) (count four). On July 1, 2003,
the Court sentenced Petitioner as a career offender and an armed career criminal to a term
of imprisonment of 262 months on counts one and four of the indictment, followed by 60
months on count two, for a total sentence of 322 months. 1 Petitioner did not appeal.
II. Discussion
Petitioner argues that his sentence as an armed career criminal and career offender
was imposed in violation of the Constitution and laws of the United States and should be
vacated. His claim is based on Johnson, in which the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is
unconstitutionally vague, a decision that was made retroactive on collateral review by the
Supreme Court in Welch v. United States, 136 S. Ct. 1257 (2016). Petitioner submits that
the Florida offenses of resisting arrest with violence and robbery, which served as
predicate offenses for his classification as an armed career offender and career criminal,
no longer qualify as “violent felonies” and his armed career criminal and career offender
sentences must be vacated.

1

The Pre-sentence Investigation Report (“PSR”) recommended that Petitioner be
treated as an armed career criminal under the Armed Career Criminal Act, as well as a
career offender under the sentencing guidelines. Petitioner’s PSR stated he had five prior
robbery convictions and one prior conviction for obstructing or opposing an officer with
violence. (Two of the robberies were committed on the same day, Case No. 86-8429X,
and one of the robberies and the obstruction were committed on the same day, Case No.
93-3030.)
-2-

A. Career Offender
The United States argues that Petitioner’s challenge to his career offender
designation is untimely and foreclosed by the Supreme Court’s decision in Beckles v.
United States, 137 S. Ct. 886 (2017). The Court agrees. Beckles held that the United
States Sentencing Guidelines’ residual clause remains valid after Johnson because the
advisory Sentencing Guidelines, unlike the ACCA, “are not subject to a vagueness
challenge under the Due process Clause” and that § 4B1.2(a)(2)’s residual clause is not
void for vagueness. Id. at 892. Therefore, Petitioner’s claim is untimely under §
2255(f)(1). His conviction became final years ago, and since Johnson does not apply to
Petitioner’s career offender sentence, § 2255(f)(3) does not apply to extend the time for
filing a § 2255 motion.
Petitioner tries to distinguish his case from Beckles when he argues in his reply
that he was sentenced under the mandatory sentencing guidelines rather than the advisory
guidelines and thus Beckles is not binding. However, Petitioner acknowledges that the
Eleventh Circuit case of In re Griffin, 823 F.3d 1350, 1354 (11 th Cir. 2016), recognizes
that the logic and principles in Matchett also govern guideline sentences when the
Guidelines were mandatory. See U.S. v. Matchett, 802 F.3d 1185, 1193–96 (11th Cir.
2015). Petitioner simply argues in his reply that In re Griffin was wrongly decided.
Petitioner’s career offender challenge is dismissed as untimely.

-3-

B. Armed Career Criminal Act
At sentencing, the Court found Petitioner was an armed career offender based on
four previous robbery convictions. Pursuant to § 924(e)(1), a defendant is an armed
career offender under the ACCA and subject to an enhanced sentence if he violates
section 18 U.S.C. § 922(g) and has at least three prior felony convictions of either a crime
of violence or a serious drug offense committed on occasions different from one another.
Petitioner, while recognizing that the binding precedent in the Eleventh Circuit holds that
a conviction for Florida robbery categorically qualifies as a “violent felony,” argues that
after Johnson, his prior convictions for robbery no longer qualify as violent felonies under
the ACCA, and therefore, his sentence as an armed career criminal should be vacated and
set aside.
In response, the Government argues that Petitioner has at least four prior felony
convictions that satisfy the ACCA after Johnson. He has four Florida robbery convictions
committed on separate occasions, all of which categorically satisfy the elements clause of
the ACCA. In addition, the Government argues that Petitioner’s prior Florida conviction
for obstructing or opposing an officer with violence is a crime of violence for purposes of
the ACCA. The Court agrees.
The Eleventh Circuit has determined that a robbery conviction under Florida
Statute § 812.13 has as an element the use, attempted use, or threatened use of physical
force against another person. United States v. Lockley, 632 F.3d 1238, 1245 (11 th Cir.

-4-

2011); United States v. Fritts, 841 F.3d 937, 941–42 (11 th Cir. 2016); United States v.
Seabrooks, 839 F.3d 1326 (11 th Cir. 2016). Thus, a conviction under Florida Statute §
812.13 satisfies the ACCA’s elements clause.
Petitioner has the following four Florida state court robbery convictions committed
on separate occasions: Case No. 86-7581X, Case No. 868429X, Case No. 86-11308, and
Case No. 96-3030. It makes no difference that Petitioner committed the robberies before
1997. See Fritts, 841 F.3d at 942–44. Petitioner’s previous robbery convictions are
violent felonies under 18 U. S. C. §924(e)(2)(B)(i) (the elements clause).
Petitioner’s prior conviction for obstructing or opposing an officer with violence in
violation of Florida Statute § 843.01 (Case No. 96-3030) is also a violent felony under the
elements clause. United States v. Hill, 799 F.3d 1318, 1322 (11 th Cir. 2015)(stating “that a
prior conviction for resisting an officer with violence categorically qualifies as a violent
felony under the elements clause of the ACCA”). However, because the obstructing or
opposing an officer with violence was committed on the same occasion as one of
Petitioner’s robberies, it cannot be counted separately. Petitioner’s claim that he is no
longer an armed career criminal after Johnson is denied.
III. Conclusion
Petitioner has at least three prior violent felony convictions that satisfy the ACCA
after Johnson. In addition, Johnson’s void for vagueness holding as to the ACCA’s
residual clause does not extend to the United States Sentencing Guidelines and the career

-5-

offender classification. Therefore, for the reasons stated above, Petitioner’s claim that his
sentence should be vacated because it was imposed in violation of the Constitution and
the laws of the United States is denied.
The Court recognizes that the Government has also argued that Petitioner has
procedurally defaulted his claim. However, as stated above, Petitioner is not entitled to
relief based on the merits of his claims, and therefore, the Court will not address the
procedural default argument.
ACCORDINGLY, for the reasons expressed, it is ORDERED AND
ADJUDGED that:
(1)

Petitioner’s Motion to Vacate (CV-Doc. 1; CR-Doc. 64) is DENIED.

(2)

The Clerk is directed to enter judgment for the United States in the civil
case and then to CLOSE the civil case.

CERTIFICATE OF APPEALABILITY DENIED
Petitioner is not entitled to a certificate of appealability. He has not shown that
reasonable jurists would debate that he has made a substantial showing of the denial of a
constitutional right. 28 U.S.C.§ 2253(c)(2). Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the same reason, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED at Tampa, Florida, on May 3, 2017.

Copies to: Counsel of Record
-6-