MONGO v. USA

Filing 22

REPORT AND RECOMMENDATION re 11 Amended Petition for Writ of Habeas Corpus filed by BRODDRICK DESHON MONGO, 4 MOTION to Vacate 2255 filed by BRODDRICK DESHON MONGO - R&R flag set. Signed by MAGISTRATE JUDGE GARY R JONES on 1/3/12. (bkp)

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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v.

CASE NO.1 :98-cr-5-MP -GRJ

BRODDRICK DESHON MONGO,

REPORT AND RECOMMENDATION

This case came before the undersigned for oral argument on Defendant's
pending motions for postconviction relief. See Doc. 29, Defendant's pro se letter
motion for correction of his sentence, and Doc. 39, Defendant's amended motion
pursuant to 28 U.S.C. § 2255, filed through appointed counsel. For the following
reasons, the undersigned recommends that the motions be denied.
Background

Defendant's postconviction motions stem from his guilty plea to one count of a
superseding indictment charging him with possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C §§ 922(g) and 924(e). Defendant was
sentenced on August 7, 1998, to 180 months' imprisonment as an Armed Career
Criminal based on three prior felony convictions, including a 1996 Florida conviction for
battery on a law enforcement officer (BOLEO). Defendant did not appeal. He is
presently incarcerated at FCC Coleman, within the Middle District of Florida.
Defendant's letter motion, Doc. 29, concerns the Bureau of Prison's calculation
of his sentence. Defendant contends that the BOP originally calculated his release
date as February 25, 2011, allowing credit for time spent in the custody of the State of

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Florida for a conviction and sentence imposed following his federal conviction. The
BOP subsequently determined that Defendant was not entitled to such state custody
credit, and recalculated Defendant's sentence. Defendant now has a projected release
date of June 25, 2021. Defendant seeks a new sentencing judgment nunc pro tunc to
reflect that his federal sentence should run concurrent to his State of Florida sentence.
Defendant's amended § 2255 motion, Doc. 39, asserts that he is entitled to
resentencing due to changes in the substantive law controlling his qualification as an
Armed Career Criminal. Specifically, Defendant argues that the Florida offense of
battery upon a law enforcement officer no longer qualifies as a violent felony for
purposes of sentencing under the ACCA. See United States v. Williams, 609 F.3d
1168,1169-70 (11th Cir. 2010) (holding that, in light of Johnson v. United States, 130
S. Ct. 1265 (2010), the fact of a conviction for felony battery on a law enforcement
officer in Florida, standing alone, no longer satisfies the "crime of violence"
enhancement of the sentencing guidelines).
The Government filed a motion to dismiss Defendant's letter motion for lack of
jurisdiction, arguing that the relief sought with respect to Defendant's sentence
calculation is unavailable under § 2255, but must be sought by way of a § 2241 habeas
corpus petition in the district in which Defendant is confined. Doc. 40. The
Government filed a response to the amended § 2255 motion, arguing that even without
Defendant's prior conviction for battery on a law enforcement officer Defendant had
three prior convictions for serious drug offenses that qualify as predicate offenses for
purposes of ACCA sentencing. In a footnote, the Government states that the amended

§ 2255 motion is barred by the statute of limitations, and that Defendant's sentencing
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claims are procedurally defaulted. Doc. 44 & n. 2. In reply, Defendant contends that
without a new sentencing hearing his right to due process would be violated if other
predicate convictions were substituted for purposes of ACCA sentencing. Defendant
maintains that his sentence-calculation claim may properly be considered in this Court,
and that he has exhausted all BOP remedies with respect to that claim.
Sentence-Calculation Claim
With respect to Defendant's sentence-calculation claim, Defendant concedes
that the Court's judgment did not provide that Defendant's federal sentence should run
concurrent with a subsequent state sentence. Defendant requested that the BOP
review his case for nunc pro tunc designation of the state prison for service of his
federal sentence, and award custody credit for time spent in state prison towards
Defendant's federal sentence. Defendant submitted a copy of the BOP's administrative
remedy response denying the request, in which the BOP represents that it reviewed the
request in accordance with 18 U.S.C § 3621 (b), and determined that the statutory
factors did not warrant nunc pro tunc designation. Doc. 45.
Under these circumstances, if Defendant is dissatisfied with the BOP's resolution
of his request and determination of his custody credits, his remedy is to file a 28 U.S.C.

§ 2241 habeas corpus petition challenging the BOP's execution of his sentence. It is
well established that the BOP is charged with the responsibility of sentence
computation and other administrative matters regarding the length of a prisoner's
confinement. United States v. Wilson, 503 U.S. 329, 335 (1992) ("After a district court
sentences a federal offender, the Attorney General, through the BOP, has the
responsibility for administering the sentence."); Hicks v. Jordan, 165 Fed. Appx. 797
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(11th Cir. 2006) (§ 2241 case seeking nunc pro tunc credit; noting that the "Attorney
General has the authority to determine what credit, if any, is due a prisoner for time
served, and the Attorney General has delegated the right to make this determination to
the BOP."); Pierce v. Holder 614 F.3d 158, 160 (5 th Cir. 2010) ("Where a federal
sentence was imposed before a state sentence, the BOP may indirectly award credit for
time served in state prison by deSignating nunc pro tunc the state prison as the place in
which the prisoner serves a portion of his federal sentence.") (citing Barden v. Keohane,
921 F.2d 476, 480 (3d Cir.1990)). In Pierce, the Fifth Circuit noted that the sentencing
court lacked jurisdiction to modify a sentence in order to preclude a prisoner's request
for time credit, because the determination as to whether to make a nunc pro tunc
designation is within the BOP's discretion. Pierce, 614 F.3d at 160 n.1 (citing Wilson,
503 U.S. at 335).
A § 2241 habeas corpus petition challenging the duration of a prisoner's
confinement must be filed in the federal judicial district encompassing the facility where
he is incarcerated. Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004). Defendant presently
is confined at FCC Coleman, which is within the jurisdiction of the Middle District of
Florida, and accordingly his challenge to the BOP's denial of nunc pro tunc designation
should be filed in that District.
For these reasons, Defendant's motion seeking relief with respect to the BOP's
determination of credits on his federal sentence and nunc pro tunc designation is not
cognizable in this Court, and the motion should be denied.

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Paga 50(10

ACCA Sentencing Claim
(1) Procedural Default

Prior to the oral argument in this case, the Government filed a Notice of
Supplemental Authority in support of its assertion that Defendant's ACCA sentencing
claim was procedurally defaulted because Defendant did not raise the claim on appeal,
and such procedural default bars consideration of the claim in the instant § 2255
motion. Doc. 50 (citing McKay v. United States, 657 F.3d 1190 (11th Cir. 2011)).
In McKay, the defendant pleaded guilty in March 2006 to four controlled­
substance offenses, and was sentenced as a career offender pursuant to U.S.S.G.

§ 4B1.1 because of prior felony convictions for (1) carrying a concealed weapon, a
crime of violence under the Guidelines, and (2) a controlled-substance offense. The
defendant did not object to the career-offender enhancement and did not appeal. In
October 2008, the defendant filed a pro se motion pursuant to 28 U.S.C § 2255 arguing
that in light of Begay

v. United States, 553 U.S. 137 (2008); and United States v.

Archer, 531 F.3d 1347 (11th Cir. 2008), his prior conviction for carrying a concealed
weapon no longer qualified as a "crime of violence" for purposes of career-offender
sentencing. The defendant argued that his procedural default of the claim should be
excused because he was "actually innocent" of his career offender sentence.
The district court concluded that the claim was a nonconstitutional sentencing
claim that was not cognizable under § 2255 because it could have been raised on direct
appeal. On appeal, the Eleventh Circuit declined to decide whether the claim was
cognizable under § 2255. Instead, the Court concluded that the defendant's
sentencing claim was procedurally defaulted. The Court explained that the defendant's
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procedural default could be excused only jf one of the two exceptions to the procedural
default rule applied: (1) cause and prejudice, or (2) a miscarriage of justice, or actual
innocence. McKay, 657 F.3d at 1196. The defendant did not argue that the causeand-prejudice exception applied, and so the Court considered whether the actual
innocence exception applied to excuse the procedural default. The Court discussed the
contours of the actual-innocence exception and its application in the Supreme Court
and other Circuits. The Court concluded as follows:
With these principles in mind, we face the question of whether the actual
innocence of sentence exception applies to McKay's claim that he was
erroneously sentenced as a career offender because one of his prior
convictions does not qualify as a "crime of violence." To answer this
question, we need not enter the debate regarding whether the actual
innocence exception extends to the noncapital sentencing context. Even
assuming that this exception does extend beyond the capital sentencing
context, it still does not apply to McKay because his claim is one of legal,
rather than factual, innocence and thus fails to fall within the actual
innocence exception's purview .... We thus decline to extend the actual
innocence of sentence exception to claims of legal innocence of a
predicate offense justifying an enhanced sentence. In so doing, we heed
the Supreme Court's instruction to exercise restraint in expanding the
procedural default rule's exceptions. We also keep the actual innocence
exception narrow, and ensure that this exception remains 'rare' and is only
applied in the 'extraordinary case:
Id. at 1198 (citing Bousley v. United States, 523 U.S. 614, 623 (1998); Sawyer v.
Whitley, 505 U.S. 333, 339 (1992».
The Court finds that McKay controls the outcome of Defendant's sentencing
claim. Defendant's claim is procedurally defaulted, and he does not argue that the
cause-and-prejudice exception applies to excuse the default. Defendant contends that
he is actually innocent of his career offender sentence because the Florida offense of
BOlEO is not a crime of violence for ACCA sentencing purposes, but the actual

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innocence exception does not extend to such claims of legal innocence of a predicate
offense justifying an enhanced sentence. Id.
(2) Merits
Even if Defendant's sentencing claim was not procedurally defaulted, the Court
finds that he is not entitled to relief on the merits of the claim. The Eleventh Circuit has
addressed what information the sentencing court may consider in determining whether
a BOlEO conviction qualifies a defendant for enhanced sentencing. In United States v.

Corles, 2011 Wl 2079401 (11th Cir. 2011) (unpublished), the Court affirmed an
enhanced sentence under U.S.S.G. Chapter 2 for which one of the qualifying offenses
was BOlEO, explaining as follows:
Generally, when determining whether a prior conviction is a qualifying
offense for purposes of a sentencing enhancement, we use a modified
categorical approach, looking at the fact of the conviction, the statutory
definition of the prior offense, and, if the statute encompasses conduct
falling both inside and outside the enhancement, certain
Shepard-approved documents, such as the charging document, written
plea agreement, transcript of the plea colloquy and explicit findings of fact.
United States V. Rainer, 616 F.3d 1212,1215 (11th Cir.2010) (involving
ACCA enhancement), cerl. denied, U.S. --,131 S.Ct. 968,178
L.Ed.2d 796 (2011); United States V. Palomino Garcia, 606 F.3d 1317,
1327-29 (11th Cir.201 0) (involving sixteen-level enhancement in U.S.S.G.
§ 2l 1.2(b)(1 )(A)(ii)); see also Shepard V. United States, 544 U.S. 13, 16,
125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005).
[T]his Court concluded that, when applying the categorical
approach, "the fact of a conviction for felony battery on a law enforcement
officer in Florida, standing alone, no longer satisfies the 'crime of violence'
enhancement criteria" of physical force. United States V. Williams, 609
F.3d 1168, 1169-70 (11th Cir.2010). The Williams court explained that
under Florida's battery statute, a person could commit a battery by either
actually and intentionally touching someone or by intentionally causing
bodily harm to someone. Id. at 1170. The Williams court concluded that
there was "no evidence in the record, that we may consider under
[Shepard] to clarify under which of these provisions Williams was
convicted." Id. Williams relied upon Johnson V. United States, 559 U.S.
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--,130 S.Ct. 1265, 1271, 176 L.Ed.2d 1 (2010), which concluded that
the phrase "physical force" in the ACCA, 18 U.S.C. § 924(e)(2)(8)(i),
meant "violent force"-that is, "force capable of causing physical pain or
injury to another person." Johnson, 559 U.S. at - - , 130 S.Ct. at 1271;
see also Williams, 609 F.3d at 1169.
Cortes argues that, after Williams and Johnson, his Florida
convictions for battery on an officer and resisting an officer with violence
categorically do not qualify as "crimes of violence" for purposes of §
2L 1.2(b)( 1)(A). The problem for Cortes is that he did not dispute the facts
in paragraph 28 of the PSI, which show that Cortes's Florida offenses did
involve violent force. In fact, it is undisputed that Cortes's offenses
involved violently shoving an officer and then later punching an officer in
the chest.
At sentencing, the district court may rely on facts contained in the
PSI that are undisputed and deemed admitted. See United States v.
Bennett, 472 F.3d 825. 832-34 (11th Cir.2006). To the extent Cortes
argues for the first time on appeal that the facts in paragraph 28 were
drawn from non- Shepard-approved materials, he has not preserved that
argument for appellate review. See United States v. Wade, 458 F.3d
1273, 1277 (11th Cir.2007) (explaining that the "failure to object to a
district court's factual findings [as to the nature of the prior offense]
precludes the argument that there was error in them"). Therefore, the
district court did not err in concluding that Cortes's Florida withheld
adjudications for two counts of battery on an officer and one count of
resisting an officer with violence were "crimes of violence" within the
meaning of U.S.S.G. § 2L 1.2(b)(1)(A).
Cortes, 2011 WL 2079401 *3-*4. The Eleventh Circuit reached a similar conclusion in
United States v. Jones, 408 Fed. Appx. 258 (11th Cir. 2011), affirming a career-offender
sentence predicated on a 80LEO conviction in which the PSR established that the
Defendant "pushed the officer to the ground by using both hands." The Court
determined that "because [defendant] did not object to this description, the district court
could properly consider it to determine which statutory phrase was the basis for his
conviction." Jones, 408 Fed. Appx. at 261. On the basis of the description of the facts
in the PSR, the Court concluded that "the district court did not plainly err in finding that

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Jones was convicted of intentionally striking a law enforcement officer and that a
conviction under that portion of the statute necessarily involves the use of substantial
physical force capable of causing physical pain or injury." Id. at 261-62 (citing Johnson,
130 S.Ct. at 1270-71).
In this case, Defendant concedes that the facts contained in his PSR - which
were undisputed and therefore deemed admitted - reflect the following regarding his
BOlEO conviction:
On July 31, 1995, a correctional officer at the levy County Jail observed
Mongo in a shower at the levy County Jail, smoking what appeared to be
a marijuana cigarette. When the correctional officer approached Mongo,
Mongo attempted to throw the alleged marijuana cigarette away. The
defendant also pushed the correctional officer and a scuffle ensued.
PSR,-r 33.
These facts support a conclusion that Defendant's BOlEO offense did involve
the use of violent force, and that the sentencing court properly concluded that the
offense qualified Defendant for ACCA sentencing. See Jones, 408 Fed. Appx. at 261­
62; Cortes, 2011 Wl 2079401 *3-*4.

Further, as the Government argues, Defendant's unobjected-to PSR reflects that
Defendant had at least three prior controlled-substance convictions for sale of cocaine
"committed on occasions different from one another" that would have qualified him for
ACCA sentencing, in addition to the offenses referenced in the Superseding Indictment.
See Doc. 15; PSR,-r,-r 18, 25-31; 18 U.S.C § 924(e). Defendant argues that such other
convictions cannot support the enhancement because they were not referenced in the
superceding indictment. The government, however, was not required to do so because

§ 924(e) is mandatory and the qualifying offenses do not need to be charged in the
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indictment. See United States v. Gibson, 64 F.3d 617, 625-26 (11th Cir. 1995); United
States v. Cobia,41 F.3d 1473, 1475-76 (11 th Cir. 1995). Defendant has not met his
burden of showing that the offenses identified in the PSR were not separate convictions
such that he would be entitled to a new sentencing hearing.
Conclusion
In light of the foregoing, it is respectfully RECOMMENDED:
That the motion for correction of sentence, Doc. 29, and motion to vacate, Doc.
39, be DENIED and that a certificate of appealability be DENIED.
IN CHAMBERS this 9th day of November 2011.

61f1aw ([5){:lp1o/1etJ
GARY R. JONES
United States Magistrate Judge

NOTICE TO THE PARTIES
A party may file specific. written objections to the proposed findings and
recommendations within 14 days after being served with a copy of this report and
recommendation. A party may respond to another party's objections within 14 days after being
served with a copy thereof. Failure to file specific objections limits the scope of review of
proposed factual findings and recommendations.

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