JAMES S. MOODY, Jr., District Judge.
THIS CAUSE comes before the Court upon Petitioner Robert Griffin Brown's Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (CV Doc. 1). Brown challenges his 188-month sentence pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), on his conviction for possession of a firearm by a convicted felon (Count III).
On February 6, 2004, Brown pled guilty, without a plea agreement, to the following counts: (1) possession of fifty or more grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (Count I); (2) possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count II); (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (Count III); and (4) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count IV).
The ACCA designation resulted in a minimum-mandatory sentence of fifteen years and an increase in the statutory maximum from ten years to life on Count III. See 18 U.S.C. § 924(a)(2), (e). Also, because Brown was classified as an armed career criminal, he was subject to the armed-career-criminal sentencing guideline, U.S.S.G. § 4B1.4. As a result, he was assigned an enhanced total offense level of 31 and an enhanced criminal history category of VI, which increased the guideline imprisonment range on Counts I through III to 188 to 235 months. (PSR at 4, 7, 12). Accordingly, on May 21, 2004, Brown was sentenced to concurrent terms of 188 months' imprisonment on Counts I through III and to a consecutive term of sixty months' imprisonment on Count IV. (CR Doc. 68 at 9). All counts were to be followed by five years' supervised release. (Id.). In sentencing Brown, the Court expressed reservations about the length of Brown's sentence but concluded that it was required to impose a sentence within the guidelines.
Brown did not file a direct appeal of his convictions and sentences. On March 22, 2005, Brown filed a motion to vacate his sentences pursuant to 28 U.S.C. § 2255, alleging several claims of ineffective assistance of counsel. See Brown v. United States, No. 8:05-cv-607-JSM-EAJ (M.D. Fla. 2005) (Doc. 1). On July 21, 2006, the Court denied Brown's § 2255 motion. Id. (Doc. 15). Brown appealed the denial of his § 2255 motion to the Eleventh Circuit Court of Appeals and filed an application for a certificate of appealability. Id. (Docs. 17, 18). Both this Court and the Eleventh Circuit denied Brown's request for a certificate of appealability. Id. (Docs. 20-22).
On December 18, 2013, several years after the United States Supreme Court's decision in Begay v. United States, 553 U.S. 137 (2008), Brown filed an untimely notice of appeal. (CR Doc. 91). Thereafter, Brown was represented by appointed counsel, who realized that the appropriate remedy for the relief sought by Brown was a motion pursuant to § 2241. (CV Doc. 1 at 2). Accordingly, Brown moved to voluntarily dismiss his appeal, and, instead, filed the instant petition. (Id.). Brown argues that his sentence for possession of a firearm by a convicted felon (Count III) was improperly enhanced under the ACCA beyond the statutory maximum because, pursuant to Begay and United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), Brown does not have the requisite three predicate offenses to be considered an armed career criminal. (CV Doc. 14). Brown also contends that because he is entitled to be resentenced on Count III, the Court should also revisit Brown's sentences on Counts I and II under the sentence package doctrine. (Id.).
Respondent counters that the Court lacks jurisdiction to consider Brown's § 2241 petition because, although his sentence on Count III exceeds the statutory maximum, the overall length of his aggregate detention based upon his other sentences is lawful.
Generally, § 2241 provides a mechanism by which prisoners can challenge the execution rather than the validity of their sentences. See Bryant, 738 F.3d at 1290 (citing Antonelli v. Warden, 542 F.3d 1348, 1352 (11th Cir. 2008)). If a prisoner wishes to challenge the validity of his or her sentence after it has become final, the appropriate means is through a motion pursuant to § 2255.
Because Brown seeks to invoke the savings clause, he must establish the following factors to confer jurisdiction upon this Court: (1) throughout his sentencing, direct appeal, and first § 2255 proceeding, his claim was specifically foreclosed by Eleventh Circuit precedent; (2) after his first § 2255 proceeding, a United States Supreme Court decision overturned that circuit precedent; (3) the new rule announced in the Supreme Court decision applies retroactively on collateral review; (4) as a result of the retroactively applicable rule, his sentence exceeds the statutory-maximum penalty; and (5) the savings clause reaches his claim of illegal detention above the statutory maximum. Bryant, 738 F.3d at 1274 (synthesizing the savings-clause tests articulated in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), Gilbert II, 640 F.3d 1293, and Williams, 713 F.3d 1332).
Usually, an individual convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) faces a potential statutory-maximum sentence of ten years' imprisonment and three years' supervised release. See 18 U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(b)(2). But, under the ACCA, an individual who was previously convicted of three violent felonies or serious drug offenses, is subject to a minimum sentence of fifteen years' imprisonment, a maximum sentence of life imprisonment, and five years' supervised release. 18 U.S.C. §§ 924(e)(1), 3559(a)(1), 3583(b)(1). The ACCA defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year . . . that. . . has as an element the use, attempted use, or threatened use of physical force against the person of another; . . . or is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). Brown was subject to sentencing under the ACCA because he had two previous convictions for serious drug offenses and one previous conviction for a violent felony, carrying a concealed firearm. Brown now challenges the use of his previous conviction for carrying a concealed firearm to satisfy the ACCA prerequisites.
At the time Brown was sentenced and when he filed his § 2255 motion, binding Eleventh Circuit precedent specifically held that carrying a concealed firearm was a violent felony for ACCA purposes. See United States v. Hall, 77 F.3d 398 (11th Cir. 1996); United States v. Gilbert, 138 F.3d 1371 (11th Cir. 1998). However, four years after Brown's sentence became final and two years after he filed his § 2255 motion, the United States Supreme Court issued its decision in Begay, which clarified that a "violent felony" within the meaning of the ACCA includes only felonies involving "purposeful, violent, and aggressive conduct." 553 U.S. at 145. The Begay decision abrogated the Eleventh Circuit's decisions in Hall and Gilbert. See United States v. Canty, 570 F.3d 1251, 1252 (11th Cir. 2009); Archer, 531 F.3d 1347. As a result, carrying a concealed firearm is no longer considered a violent felony for ACCA purposes.
For the savings clause of § 2255(e) to open the portal to review Brown's § 2241 petition, Brown must establish the five Bryant requirements. Respondent concedes that Brown has established the first three Bryant factors. First, throughout Brown's sentencing and first § 2255 proceeding, Eleventh Circuit precedent squarely foreclosed his claim that carrying a concealed firearm was not a violent felony for ACCA purposes. See Hall, 77 F.3d 398; Gilbert, 138 F.3d 1371. Second, well after Brown's § 2255 proceeding ended, Begay and Canty overturned Hall's binding precedent. See Canty, 570 F.3d at 1255 ("[C]arrying a concealed weapon is not a violent felony that may be used as a predicate conviction to enhance a defendant's sentence under the ACCA."). Third, in Bryant, the Eleventh Circuit held that Begay applies retroactively on collateral review. 738 F.3d at 1277. However, according to Respondent, Brown cannot satisfy the fourth Bryant factor, i.e., he cannot show that his sentences exceed the statutory maximum. Thus, whether Brown's claim can proceed under § 2241 turns upon whether his sentences exceed the statutory maximum.
Technically, Brown's sentence on Count III exceeds the statutory maximum on that count. Without the ACCA enhancement, Brown is subject to a ten-year statutory maximum on Count III; therefore, his sentence of 188 months clearly exceeds the statutory maximum. Nevertheless, Respondent argues that Brown's aggregate sentences, which includes his lawful 188-month sentences on Counts I and II,
Following the Eleventh Circuit's decision in Bryant, each case, including Bryant, granting a § 2241 petition for a sentence that exceeds the statutory maximum has only considered claims challenging a single conviction and sentence, rather than a claim, like the one at hand, involving multiple convictions and sentences. See Moore v. Warden, 568 F. App'x 838 (11th Cir. 2014); Bryant, 738 F.3d 1253; Mackey v. Warden, 739 F.3d 657 (11th Cir. 2014); Manley v. Unnamed Respondent, No. 1:14-CV-142-TWT, 2014 WL 3397129 (N.D. Ga. July 10, 2014). Thus, to decide this issue, the Court considers the language of the savings clause.
Specifically, § 2255(e) provides that a petition may be brought pursuant to the savings clause if a prior § 2255 motion was "inadequate or ineffective to test the legality of [the petitioner's] detention." (Emphasis added). The use of the term "detention" indicates that the concern of § 2255(e) is not whether a particular sentence itself is legal, but whether the overall detention is legal. Here, although Brown's sentence on Count III is an improper sentence that exceeds the statutory maximum, his overall detention does not.
Even if the Court found that Brown's statutory-maximum-exceeding sentence on Count III opened the portal for review under § 2255(e), Brown's victory would be short lived. In granting relief to the petitioner in Bryant, the Eleventh Circuit stated,
Bryant, 738 F.3d at 1288. In response to Judge Martin's partial dissent, the Eleventh Circuit explained,
Id. at 1290. Based on Bryant and Gilbert II, if the Court granted Brown's § 2241 petition as to Count III, the Court would be limited to reducing Brown's sentence on Count III to the statutory maximum of ten years, and the Court could not resentence Brown on Counts I through III. The Court notes, however, that but for the decisions in Gilbert II and Bryant dictating the applicable remedy in this case, it would be inclined to resentence Brown on Counts I through III to effectuate its original sentencing intent since its intent at the time of sentencing was thwarted by the then-mandatory sentencing guidelines. As it stands, any relief to which Brown would be entitled under § 2241 would amount to nothing more than a hollow victory as he would still have to serve his 188-month sentences on Counts I and II. A reduction of Brown's sentence on Count III would not affect the overall length of his detention.
The Court also notes that as a result of Brown's erroneous designation as an armed career criminal under U.S.S.G. § 4B1.4, Brown is not entitled to relief under any of the retroactive amendments to the United States Sentencing Guidelines, such as Amendment 782, which retroactively lowered the base offense levels applicable to certain drug offenses.
Accordingly, it is therefore
1. Petitioner Robert Griffin Brown's Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (CV Doc. 1) is DISMISSED.
2. The Clerk is directed to close this case.
