Ubele v. United States Of America

Filing 12

REPORT AND RECOMMENDATIONS dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Donald Lee Ubele, and granting 10 MOTION to Dismiss filed by United States Of America. Objections to R&R due by 4/6/2017. Signed by Magistrate Judge G. R. Smith on 3/23/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DONALD L. UBELE,

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Movant,

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UNITED STATES OF AMERICA,

CV416-143
CR405-012

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Respondent.

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I 1 DI S) WII 1 1 EIJ1IIYVU[Iii
Movant Donald TJbele, proceeding pro Se, moves under 28 U.S.C.
§ 2255 to vacate the Armed career criminal Act ACCA) enhancement
applied to his 2006 sentence for possession of a firearm by a convicted
felon. Doc. 170;' see clocs. 1 (indictment), 29 (superseding indictment),
70 (jury verdict), 75 (judgment for 262 months' imprisonment). He
seeks to exploit the new rule announced in Johnson v. United States
576 U.S. -, 135 S. ct. 2551 (2015), and made retroactive by Welch v.

United States, 578 U.S. -, 136 S. ct. 1257 (2016), to neutralize the 22-

1

The Court is citing to the criminal docket in CR405-012 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.

year enhanced sentence 2 he received for possession of a firearm and
ammunition as a career felon. Doc. 170. The Government seeks to
dismiss his motion as successive (doe. 181); Ubele has not opposed.
I. BACKGROUND
This is not Ubele's first rodeo. After judgment was entered on
May 22, 2006, he unsuccessfully appealed, see United States v. Ubele,
215 F. App'x 971, 972-73 (11th Cir. 2007) (finding, among other things,
that his two drug convictions were "separate criminal episodes for
purposes of the ACCA because the crimes were successive rather than
simultaneous."), and has since repeatedly attempted (unsuccessfully) to
challenge his sentence, see Ubele v. United States, No. CV412-011;

Ubele v. United States, No. CV412-136; Ubele v. Dru, N.D. Ga. No.
CV1 13-2293. Seizing upon the recent decision in Johnson, movant
received permission from the Eleventh Circuit to file this habeas
challenge, arguing that his prior convictions no longer serve as ACCA
predicates. Doe. 170. The Government seeks dismissal of his successive
motion, arguing that none of Ubele's claims rest on a "new rule of

2

Ubele's sentence was enhanced based on his prior conviction for arson in violation
of O.C.G.A. § 16-7-60, and two prior convictions for possession of cocaine with intent
to distribute in violation of O.C.G.A. * 16-13-30(b).
2

constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable," doc. 181 at 5 (quoting
28 U.S.C. § 2255(h)(2)), because Ubele's sentence did not rely on the
"residual clause" the Johnson court held unconstitutional.
II. ANALYSIS
The ACCA provides enhanced penalties for defendants who are
(1) convicted of being felons in possession of firearms in violation of
18 U.S.C. § 922(g), and (2) have "three prior convictions. . . for a violent
felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). Plain
vanilla, felon-in-possession convictions fetch a maximum 10 year
sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement
mandates a 15 year minimum (and a maximum of life). 18 U.S.C.
§ 924(e)(1).
The ACCA defines "violent felony" as, among other things, a
felony that "otherwise involves conduct that presents a serious potential
risk of physical injury to another." Id at § 924(e)(2)(B). Johnson held
that that "residual clause" violated due process.

See 135 S. Ct. 2551,

2557. It said nothing, however, about ACCA enhancements predicated
on convictions for "serious drug offenses" or "violent felonies" classed as
3

such under the enumerated offenses and elements clauses.

See, e.g.,

Johnson, 135 S. Ct. at 2563 ("Today's decision does not call into
question application of the Act to the four enumerated offenses, or the
remainder of the Act's definition of a violent felony," much less its
definition of "serious drug offense"). After Johnson, enhancements
based on those offenses remain valid. See United States v. Tinker, 618
F. App'x 635, 637 (11th Cir. 2015) (convictions that qualify as violent
felonies under the "elements" clause of the ACCA rather than the
"residual" clause survive Johnson).
Ubele's enhancement was based on his conviction for arson in the
first degree in violation of O.C.G.A. § 16.7.60, see doe. 181, Exh. B at 34 (indictment charging that Ubele "did knowingly damage a dwelling
house . . . by means of fire, without consent of . . . the owner"), 5-6
(plea), 7 (sentencing documents ordering 10 years' imprisonment), and
his two convictions for possession with intent to distribute cocaine in
violation of O.C.G.A. § 16-13-30(b), see doe. 181, Exh. C at 3-4

"In determining the nature of a defendant's prior convictions and whether to
classify the defendant as an armed career criminal under the ACCA, the sentencing
court may rely on Shepard [v. United States, 544 U.S. 13, 16 (2005)]-approved
documents and any undisputed facts in the [P5R]." In re Hires, 825 F.3d 1297, 1302
(11th Cir. June 15, 2016) (citing United States v. McCloud, 818 F.3d 591, 595, 599
(11th Cir. 2016)); United States v. Wade, 458 F.3d 1273, 1277-78 (11th Cir. 2006).
In

(indictment charging Ubele with one count of possession of cocaine (on
January 19, 1989) and one count of distribution of cocaine (on January
13, 1989), 5-6 (plea), 7 (sentencing document ordering 10 years for each
reduced count of possession with intent to distribute, to be served
concurrently). Arson 4 is an enumerated "violent felony," 5 and
possession with intent to distribute cocaine is a serious drug offense 6

Libele's contention that his arson conviction resulted from an "Alford" plea -where he pled guilty but did not admit the factual underpinnings of the conviction -also offers no succor. Under Georgia law, an Alford plea is "a guilty plea and places
the defendant in the same position as if there had been a trial and conviction by a
jury." Morrell v. State, 297 Ga. App. 59 n. 3 (2009) (quotations omitted), cited by
United States v. Wade, 551 F. App'x 546, 549 (11th Cir. 2014) (noting that a knowing
and voluntary plea, supported by a factual basis, are all that is required for an Alford
plea "to produce the same collateral consequences as an ordinary guilty plea"). Libele
does not challenge that his arson plea was knowing, voluntary, and supported by a
factual basis. It counts.
The ACCA provides that "arson" is a "violent felony for enhancement purposes.
18 U.S.C. § 924(e)(2)(B)(ii). Generic "arson" criminalizes the intentional damaging
of a dwelling house, building, or other structure. See Begay v. United States, 553 U.S.
137, 144-45 (2008) (the generic versions of the enumerated crimes all "involve
purposeful, 'violent,' and 'aggressive' conduct."); id. (citing, as an example, one of the
Model Penal Code's definition of "arson" as "causing a fire or explosion with 'the
purpose of,' e.g., 'destroying a building. . . of another."); United States v. Misleveck,
735 F.3d 983, 988 (7th Cir. 2013) (defining generic arson as "the intentional or
malicious burning of any property, regardless of value or amount of damage").
Georgia arson criminalizes the "knowing" "damaging" of a dwelling house, building,
or other structure, O.C.G.A. § 16-7-60, and is therefore properly an enumerated
offense under the ACCA. That's one ACCA predicate offense.
6

Possession with intent to distribute cocaine convictions under Georgia law match
the § 924(e) definition of a "serious drug offense" because they are: (1) offenses under
state law, (2) for distributing or possessing with intent to distribute a controlled
substance, and (3) punishable by a maximum term of imprisonment of ten years or
more. 18 U.S.C. § 924(e)(A)(ii); see Ga. L. 1980, p. 432, § 1; Ga. L. 1985, p. 149;
5

under the ACCA -- Ubele's three qualifying convictions are not affected
in any way by the Johnson holding.
It follows that movant cannot rely upon § 2255(h)(2) to permit his
indisputably successive filing. Therefore, his motion is procedurally
barred and must be DISMISSED. Accordingly, the Government's
motion to dismiss Ubele's § 2255 motion should be GRANTED. For the
reasons set forth above, it is plain that he raises no substantial claim of
deprivation of a constitutional right. Accordingly, no certificate of
appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Rule
11(a) of the Rules Governing Habeas corpus cases Under 28 U.S.C.
§ 2255 ("The district court must issue or deny a certificate of

Dennard v. State, 265 Ga. App. 229, 229 (2004) (cocaine qualifies as narcotic drug);
see also United States v. Safeeullah, 453 F. App'x 944, 948 (11th Cir. 2012); United
States v. Davies, 391 F. App'x 822, 825 (11th Cir. 2010). These offenses clearly
remain qualifying "serious drug offenses" for ACCA sentence-enhancing purposes.
Libele's argument that his two drug convictions should not be considered separate
offenses, see doe. 170 at 10, has already been considered and rejected at sentencing,
during his direct appeal, and in his original § 2255 motion. Ubele, 215 F. App'x at
973 (determining that the cocaine convictions were temporally distinct crimes); PSR
at 133 (TJbele was charged with distributing cocaine on January 13, 1989, and with
trafficking in cocaine on January 19, 1989, and allowed to plead guilty to two counts
of possession with intent to distribute cocaine); see also doe. 181-2. As set forth by
the Eleventh Circuit: "Although the January 13, 1989, and January 17, 1989, crimes
were charged in the same indictment and sentenced at the same time, they are two
separate criminal episodes for purposes of the ACCA because the crimes were
successive rather than simultaneous." Ubele, 215 F. App'x at 973. Added to his
arson felony, Ubele has the requisite three ACCA predicates for sentencing
enhancement.

appealability when it enters a final order adverse to the applicant.").
Any motion for leave to appeal in forma pauperis therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(3)(1)(B) and this Court's Local Rule 72.3. Within 14 clays of
service, any party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned "Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge's findings and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. VA. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x
542, 545 (11th Cir. 2015).
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SO REPORTED AND RECOMMENDED, this 23rd clay of
March, 2017.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA