Challita v. United States of America

Filing 2

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 Challita and to CLOSE the case. Signed by Judge Steven D. Merryday on 6/1/2018. (BK)

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

CASE NO. 8:14-cr-185-T-23MAP
8:18-cv-1188-T-23MAP

GEORGE CHALLITA
/

ORDER
Challita moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the
validity of his conviction for introduction into interstate commerce of misbranded
drugs, for which offense he is imprisoned for 15 months. Although timely, Challita’s
motion lacks merit because in the plea agreement Challita waived the right to raise
the ground he asserts in the motion to vacate.
Rule 4, Rules Governing Section 2255 Cases, requires a preliminary review of
the motion to vacate. Section 2255 requires denial of the motion without a response
if the “motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief . . . .” Accord Wright v. United States, 624 F.2d 557, 558
(5th Cir. 1980)1 (finding the summary dismissal of a Section 2255 motion 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)

1

Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued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).

[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).
FACTS2
From at least March 1, 2011, through at least September 30,
2013, the defendant and others, through certain business
entities, introduced, and delivered for introduction, into
interstate commerce, smokable synthetic cannabinoids (SSCs)
in the Middle District of Florida and elsewhere. The SSC’s
were manufactured by applying chemicals (synthetic
cannabinoids) to plant material to create a product which users
would smoke for a “high.” As the SSCs were intended to be
smoked and affect the structure or function of the human body,
they were drugs subject to the labeling requirements of the
Federal Food Drug and Cosmetic Act (FDCA), 21 U.S.C. §
301 et. seq.
The packaging and labeling of the SSC’s were generally colorful
with cartoon depictions, often describing the contents as
incense, potpourri, and aromatherapy and, contrary to intended
use, falsely represented that the contents were “not for human
consumption.” The labeling often contained additional
representations suggesting that the contents were in compliance
with the law, such as “DOES NOT contain . . . ,” “DEA
Compliant,” and “100% Cannabinoids Free,” in order to
mislead consumers, retail distributors, regulators, and/or law
enforcement.
The SSC’s, packaged and labeled as described herein, were
misbranded within the meaning of the FDCA, in that the
packaging did not adequately identify the manufacturer,
distributor, or place of business; did not adequately identify the
ingredients in the drug; and did not include adequate directions
for the use of the drug. The defendant participated in the

2

This summary of the facts derives from pages 17–18 in the plea agreement. (Doc. 442)
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misbranding of the SSC’s with the intent to defraud and
mislead.

GROUNDS
Challita alleges that counsel rendered ineffective assistance at sentencing
because the United States was allowed to untimely file an objection to the
pre-sentence report, which objection the district court sustained. As a consequence,
the sentence was calculated based on fraud involving $1.9 million and the Offense
Level was increased from 4 to 19, which produces a sentence range of 30–37
months.3 However, at sentencing the district court granted defense counsel’s motion
for a variance, to which the government offered no objection, and varied downward
by five levels to an Offense Level 14, which produced a sentencing range of 15–21
months. The district court imposed a low-end sentence of 15 months.
Challita’s conviction is based on a negotiated plea. The plea agreement
specifically states that Challita “expressly waives the right to appeal defendant’s
sentence on any ground, including the ground that the Court erred in determining the
applicable guidelines range . . . .” (Doc. 442 at 14) Consequently, a waiver of the
right to challenge the guidelines sentence controls and the appeal waiver precludes a
claim of ineffective assistance of counsel at sentencing, as Williams v. United States,
396 F.3d 1340, 1342 (11th Cir.), cert. denied 546 U.S. 902 (2005), explains:
[A] valid sentence-appeal waiver, entered into voluntarily and
knowingly, pursuant to a plea agreement, precludes the
defendant from attempting to attack, in a collateral proceeding,
the sentence through a claim of ineffective assistance of counsel
3

Chillita’s lack of a criminal record afforded him a Criminal History Category I.
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during sentencing. [A] contrary result would permit a defendant
to circumvent the terms of the sentence-appeal waiver simply
by recasting a challenge to his sentence as a claim of ineffective
assistance, thus rendering the waiver meaningless.

See also United States v. Pannullo, 709 F. App’x 683, 683–84 (11th Cir. 2018) (applying
Williams and declining to issue a certificate of appealability because a “defendant
cannot avoid application of an appeal waiver by recasting a sentencing challenge as
an ineffective-assistance-of-counsel claim.”).4
Also, Challita contests the calculation of his sentence based on the amount of
money involved in the fraud because he contends that he worked for the principal
co-defendant from October 2011 to July 2012, not beginning in March 2011. To the
contrary, Challita pleaded guilty to count one of the superceding indictment, which
charges that Challita was involved in the crime from “on or about March 1, 2011,
and continuing thereafter through at least on or about September 30, 2013 . . . .”
(Doc. 437 at 1) In his plea agreement Challita admitted to his involvement “[f]rom
at least March 1, 2011, through at least September 30, 2013 . . . .” (Doc. 442 at 17)
Challita cannot now withdraw his earlier admissions. See Blackledge v. Allison,
431 U.S. 63, 73S74 (1977) (“[T]he representations of the defendant . . . [at the plea
proceeding] as well as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings. Solemn declarations in

4

Although the waiver in Williams was broader to include collateral review, Pannullo’s
waiver, available at Doc. 3 in 8:16-cr-222-T-35JSS, like Challita’s waiver, applies to only a direct
appeal. Pannullo is binding precedent because it was issued by a three-judge panel. Griffin v. Sec’y, Fla.
Dep’t of Corrs., 787 F.3d 1086, 1095 n.7 (11th Cir. 2015) (“The denial of a COA by three judges in a
published opinion, however, does constitute binding precedent that the issue in question has no
merit.”), cert. denied, 136 S. Ct. 825 (2016).
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open court carry a strong presumption of verity.”). Accord Marquez v. United States,
984 F. App’x 843, 866 (11th Cir. 2017) (quoting Blackledge); Connolly v. United States,
568 F. App’x 770, 771 (11th Cir. 2014) (quoting Blackledge).
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk must enter a judgment against Challita, close this case, and
enter a copy of this order in the criminal action.

DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Challita 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, Challita 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, Challita 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. Challita must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on June 1, 2018.

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