Marchman v. United States of America

Filing 3

ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to proceed on appeal in forma pauperis; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 6/5/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.

CASE NO. 8:03-cr-10-T-23TGW
8:17-cv-1158-T-23TGW

KEVIN LAKEITH MARCHMAN
/

ORDER
Marchman’s moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges
the validity of his convictions for one count of distributing fifty grams or more of
cocaine base, for which offense he is imprisoned for 262 months.1 Marchman
mistakenly contends that, under recent Supreme Court decisions, his career offender
sentence is invalid.
Rule 4, Rules Governing Section 2255 Cases, requires both a preliminary
review of the motion to vacate and a summary dismissal “[i]f it plainly appears from
the face of the motion, any attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief . . . .” Accord Wright v. United States, 624 F.2d
557, 558 (5th Cir. 1980)2 (finding the summary dismissal of a Section 2255 motion

1

Marchman’s original sentence of 292 months was reduced to 262 months under the
retroactive application of Amendments 706 and 711 to the United States Sentencing Guidelines.
(Doc. 39 in 03-cr-10)
2

Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued
before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).

was proper “[b]ecause in this case the record, uncontradicted by [defendant], shows
that he is not entitled to relief”); Hart v. United States, 565 F.2d 360, 361 (5th Cir.
1978) (“Rule 4(b) [Rules Governing § 2255 Proceedings], allows the district court to
summarily dismiss the motion and notify the movant if ‘it plainly appears from the
face of the motion and any annexed exhibits and the prior proceedings in the case
that the movant is not entitled to relief . . . .’”). See United States v. Deal, 678 F.2d
1062, 1065 (11th Cir. 1982) (citing Wright and Hart). Marchman’s motion to vacate
lacks merit.
Marchman pleaded guilty to one count of distributing fifty grams or more of
cocaine base and, under the terms of the plea agreement, he benefitted from the
dismissal of six additional counts of conspiring, distributing, or possessing controlled
substances. Although he qualified as a career offender under the Sentencing
Guidelines, Marchman was originally sentenced to 292 months because the quantity
of drugs for which he was responsible produced a higher sentencing range than his
status as a career offender. Amendments 706 and 711 lowered the applicable range
for calculating a sentence based on the drug quantity. As a consequence, in 2008
Marchman was re-sentenced to his present 262 months, which is based on his status
as a career offender because, under the Sentencing Guidelines as amended, the career
offender range is higher than the drug quantity range.
Marchman erroneously argues that, based on recent Supreme Court decisions,
his prior convictions no longer qualify him for a career offender sentence. First, the

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cases that Marchman cites are inapplicable because his career offender sentence is
under the Sentencing Guidelines and not the Armed Career Offender Act. See Beckles
v. United States, 137 S. Ct. 886, 895 (2017). Second, Marchman has the required two
prior convictions for a controlled substance to support a career offender sentence
under Section 4B1.1(a) even without considering his other prior felony convictions.3
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk must 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
Marchman 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, Marchman 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

3

The pre-sentence reports shows that in 1999 Marchman pleaded guilty to “delivery of
cocaine” and in 2004 he pleaded guilty to “possession of cannabis with intent to sell or deliver.”
Both convictions are a “controlled substance offense” as defined in Section 4B1.2(b). His other
felony convictions, such as escape, obstructing an officer, and aggravated fleeing to elude, are
inconsequential to his qualifying for a career offender sentence.
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(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, Marchman is entitled to neither a certificate of appealability nor an appeal in
forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Marchman must obtain authorization from the circuit
court to appeal in forma pauperis.
ORDERED in Tampa, Florida, on June 5, 2017.

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