REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, Chief Magistrate Judge.

This case is before the court on Petitioner's habeas petition, filed pursuant to 28 U.S.C. § 2241, and supporting memorandum (docs. 1, 2). Respondent filed a motion to dismiss the petition (doc. 10). Petitioner filed a response in opposition to the motion (doc. 15).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After careful consideration of all issues raised by the parties, it is the opinion of the undersigned that the petition should be dismissed for lack of jurisdiction.

I. BACKGROUND AND PROCEDURAL HISTORY

The procedural history is supported by the attachments to Respondent's motion to dismiss (doc. 10-1, attachments). On February 19, 2004, Petitioner was charged in a four-count Superseding Indictment, filed in the United States District Court for the Middle District of Florida, Case No. 5:03cr51/WTH/PRL, with conspiracy to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846 (Count One), aiding and abetting the distribution of 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2 (Count Two), aiding and abetting the distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2 (Count Three), and possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2 (Count Four) (see doc. 10-1, Judgment in a Criminal Case). The Government filed an Information and Notice of Prior Convictions, pursuant to 21 U.S.C. § 851(a)(1), placing Petitioner on notice that, as a result of his prior felony convictions, he faced statutorily enhanced sentences (doc. 10-1, Information and Notice of Prior Convictions). The Information and Notice of Prior Convictions identified the prior convictions as follows:

(doc. 10-1, Information and Notice of Prior Convictions).

On March 29, 2005, Petitioner appeared before a federal magistrate judge and entered a plea of guilty to all counts of the Superseding Indictment without a written plea agreement (see doc. 10-1, Judgment in a Criminal Case). The Government filed a Notice of Maximum Penalties, Elements of Offense, Personalization of Elements and Factual Basis, a copy of which is attached to this Report and Recommendation. After determining that Petitioner's plea was knowledgeable and voluntary, and that the offenses charges were supported by an independent basis in fact containing each of the essential elements of such offense, the federal magistrate judge recommended that the plea of guilty be accepted, and that Petitioner be adjudged guilty and sentenced accordingly (see attached Report and Recommendation Concerning Plea of Guilty). The district judge accepted Petitioner's guilty plea, adjudicated Petitioner guilty, and set sentencing for June 23, 2005 (see attached Acceptance of Plea of Guilty, Adjudication of Guilt and Notice of Sentencing).

The Presentence Report ("PSR") prepared by the federal probation office provided more details regarding Petitioner's prior state drug convictions (see doc. 14). With regard to the 1995 conviction, it stated that on April 17, 1995, Petitioner pleaded guilty to one count of possession of cocaine (as well as one count of possession of a short barrel shotgun, one count of possession of drug paraphernalia, and one count of possession of a firearm by a convicted felon) in the Circuit Court in and for Lake County, Florida, Case No. 94-CF-1276 (id., p. 9). He was adjudicated guilty and sentenced to a 5-year term of probation on the possession count (id.). With regard to the 1997 conviction, the PSR stated that on August 11, 1997, Petitioner pleaded guilty to one count of possession of cocaine and one count of sale of cocaine in the Circuit Court in and for Lake County, Florida, Case No. 97-CF-538 (id., p. 11). He was adjudicated guilty and sentenced to concurrent terms of 3 year and 4 months of imprisonment (id.).

On June 23, 2005, the federal district court sentenced Petitioner to "a total term of 292 Months on all counts concurrently" (doc. 10-1, Judgment in a Criminal Case). Petitioner did not appeal the judgment.

On June 5, 2008, Petitioner filed a pro se motion for retroactive application of Amendment 706 of the United States Sentencing Guidelines ("U.S.S.G."), which reduced offense levels for defendants convicted of offenses involving cocaine base (doc. 10-1, "Supplemental to the Aforementioned Motion to Amend Petitioner's 18 U.S.C. § 3582(c)(2) Motion (Pending) to Request this Case to Reconsider and Grant Petitioner a Two Level Reduction for his Acceptance of Responsibility."). Petitioner also requested an additional two-level reduction of his offense level in recognition of his acceptance of responsibility (id.). Included in his motion were general complaints about his trial counsel's representation (id.). The district court denied the motion on July 30, 2009, because Amendment 706 does not apply to defendants sentenced as career offenders, and the sentencing court had granted Petitioner a two-level reduction for acceptance of responsibility (doc. 10-1, Order).

Two years later, on August 1, 2011, Petitioner filed another pro se motion, pursuant to Rule 36 of the Federal Rules of Criminal Procedure, asking the district court to correct alleged clerical errors in his judgment, specifically, the amount of drugs for which he was sentenced and the reference to firearms that he denied possessing during the drug offense (doc. 10-1, "Motion to Correct Clerical Errors, Pursuant to F.R.Cr.P., Rule 36"). He claimed that these "errors" were preventing him from participating in the Bureau of Prison's Residential Drug and Alcohol Program (id.). The court denied the motion because (1) the information in the judgment was substantive, not clerical, and (2) the court lacked jurisdiction to entertain the motion, noting that Petitioner had not filed a direct appeal, nor had he filed a motion pursuant to 28 U.S.C. § 2255 (doc. 10-1, Order).

Approximately five weeks later, on September 8, 2011, Petitioner filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure, claiming the court had jurisdiction under the "savings clause" to entertain his claim that the Government had committed fraud upon the court by misrepresenting the amount of drugs at sentencing as well as his possession of a firearm (doc. 10-1, "Motion to Set Aside a Judgment for Fraud Upon the Court, Pursuant to F.R.Civ.P. 60(b)"). He asserted due process violations and complained that he suffered from a mental handicap and was denied competent or compassionate representation by counsel (id.). The district court promptly dismissed this motion for lack of jurisdiction, again noting that Petitioner had not sought direct appeal nor filed a § 2255 motion (doc. 10-1, Order). Approximately two weeks later, Petitioner re-filed his "fraud upon the court" motion, this time attempting to invoke the court's jurisdiction under the "All Writs Act" (doc. 10-1, "Motion for an Independent Action Alleging Fraud Upon the Court"). Noting that this motion was "due to be denied for any number of procedural and jurisdictional reasons," the district court (1) rejected Petitioner's U.S.S.G. arguments on the basis that he was sentenced as a career offender, (2) stated there was no fraud concerning the amount of cocaine involved in his offense (which Petitioner admitted in the factual basis for his plea) or of Petitioner's possession of a firearm (information which came from co-conspirators and not the Government), and (3) that Petitioner's objection to his possession of the firearm "was heard and denied at his sentencing" (doc. 10-1, Order).

One day after the district court issued its order, Petitioner filed another 18 U.S.C. § 3582 motion seeking retroactive application of Amendment 750 to the U.S.S.G., and claiming that his classification as a career offender over-represented his criminal history (doc. 10-1, "Motion Under 18 USC § 3582(c)(2) for Modification of Sentence by a Person in Federal Custody"). He did not challenge the fact of his previous felony convictions (see id.). The district court promptly denied this motion, repeating that Petitioner was not entitled to a reduction of his offense level because he was sentenced as a career offender (doc. 10-1, Order). Two weeks later, Petitioner filed a motion for reconsideration (doc. 10-1, Motion to Reconsideration). The court denied the motion (doc. 10-1, Order).

On April 4, 2013, Petitioner filed his third 18 U.S.C. § 3582 motion, again seeking retroactive application of U.S.S.G. amendments relating to crack cocaine offenses and again attempting to convince the court that his career offender status over-represented his criminal history (doc. 10-1, "Motion Under 18 USC § 3582(c)(2) for Modification of Sentence by a Person in Federal Custody"). The court denied the motion for the reasons stated in previous orders (doc. 10-1, Order).

(doc. 1 at 3-5).

II. ANALYSIS

The power to issue the writ of habeas corpus was granted to the federal courts by the Judiciary Act of 1789. See United States v. Hayman, 342 U.S. 205, 211, 72 S.Ct. 263, 96 L. Ed. 232 (1952). The habeas remedy is now codified in § 2241, subsection (c)(3) of which provides that the writ of habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution or laws or treaties of the United States." As noted in Hayman, habeas corpus applications are required to be brought in the district of confinement. 342 U.S. at 213.

Because courts which had federal prisons within their jurisdictional boundaries became inundated with habeas petitions, and because the materials, witnesses, and other evidence which had a significant bearing on the determination of the legality of a sentence were generally located in the district where sentence was imposed rather than where the prisoner was confined, in 1948 Congress enacted § 2255 of Title 28. See Hayman, 342 U.S. at 212-14, 218; see also Wofford v. Scott, 177 F.3d 1236, 1239 (11th Cir. 1999). The language of § 2255 suggests, and the Eleventh Circuit has expressly concluded, that this statute was intended to channel challenges to the legality of the conviction and imposition of sentence, while leaving § 2241 available to challenge the continuation or execution of an initially valid confinement. See Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351-52 (11th Cir. 2008); United States v. Jordan, 915 F.2d 622, 629 (11th Cir. 1990) (§ 2255 is primary method of collateral attack on federally imposed sentence); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Apr. 1981) (attacks on the underlying validity of a conviction must be brought under 28 U.S.C. § 2255, not 28 U.S.C. § 2241).1 Thus, § 2241 provides an avenue for challenges to matters such as the administration of parole, prison disciplinary actions, prison transfers, and certain types of detention. See Antonelli, supra (petition challenging decision of federal Parole Commission is properly brought pursuant to § 2241); Thomas v. Crosby, 371 F.3d 782, 810 (11th Cir. 2004) (petition challenging pre-trial detention is properly brought pursuant to § 2241); Bishop v. Reno, 210 F.3d 1295, 1304 n.14 (11th Cir. 2000) (petition challenging Bureau of Prisons's administration of service credits, including calculation, awarding, and withholding, involves execution rather than imposition of sentence; thus it is a matter for habeas corpus review). A collateral attack on the validity of a federal conviction and sentence, is properly brought under 28 U.S.C. § 2255 in the district of conviction. Antonelli, supra; Jordan, supra; McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). A defendant may not circumvent the procedural limitations on § 2255 motions simply by styling his motion as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

Title 28 U.S.C. § 2255(e) provides in pertinent part:

28 U.S.C. § 2255(e) (emphasis added); Wofford, 177 F.3d at 1238 (quoting § 2255 with added emphasis). The italicized language is known as the "savings clause." The savings clause imposes a subject-matter jurisdictional limit on § 2241 habeas petitions. See Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1338-40 (11th Cir. 2013).

In Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013), the Eleventh Circuit articulated five requirements necessary to proceed with a § 2241 petition raising claims of a sentencing nature under the savings clause. To show that a § 2255 motion was "inadequate or ineffective to test the legality of his detention," Petitioner must establish that (1) throughout his sentencing, direct appeal, and first § 2255 proceeding, the Eleventh Circuit's binding precedent had specifically addressed his sentencing claim and squarely foreclosed it; (2) subsequent to his first § 2255 proceeding, a Supreme Court decision overturned Circuit precedent that had squarely foreclosed Petitioner's claim; (3) the new rule announced in the Supreme Court decision applies retroactively on collateral review; (4) as a result of the new rule being retroactive, Petitioner's current sentence exceeds the statutory maximum authorized by Congress; and (5) the savings clause in § 2255(e) reaches Petitioner's claim of illegal detention above the statutory maximum penalty. Bryant, 738 F.3d at 1274.

Petitioner relies upon the Supreme Court's decisions in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L. Ed 2d 438 (2013) and Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L. Ed. 2d 314 (2013) to satisfy the Bryant factors (see docs. 1, 2, 15).2

The Eleventh Circuit recently held that the Supreme Court's decision in Alleyne does not apply retroactively on collateral review. See Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285-86 (11th Cir. 2014). Additionally, the Supreme Court has not made Descamps retroactively applicable on collateral review. See, e.g., Wilson v. Warden, FCC Coleman, ___ F. App'x ___, 2014 WL 4345685, at *3 (11th Cir. Sept. 3, 2014) (unpublished) (noting that the Supreme Court has not expressly declared Descamps to be retroactive to cases on collateral review, that Descamps was decided in the context of a direct appeal, and that the Supreme Court has not since applied it to a case on collateral review). Further, the Supreme Court was clear in Descamps that its holding was dictated by established precedent. See Descamps, 133 S. Ct. at 2283 ("Our caselaw explaining the categorical approach and its `modified' counterpart all but resolves this case."); id. at 2285 (describing the Court's prior applications of the modified categorical approach as "the only way we have ever allowed" that approach to be applied); id. at 2286 ("We know Descamps' crime of conviction, and it does not correspond to the relevant generic offense. Under our prior decisions, the inquiry is over."); id. at 2286 (describing Ninth Circuit's analysis as "[d]ismissing everything we have said on the subject"); id. at 2288 (describing Ninth Circuit's analysis as "flout[ing] our reasoning"). Therefore, the undersigned agrees with the other federal courts which have determined that Descamps did not announce a new rule; instead, it simply applied existing Supreme Court doctrine, and it is thus not retroactively applicable on collateral review. See, e.g., United States v. Montes, 570 F. App'x 830, 831 (10th Cir. 2014) (unpublished); United States v. Chapman, ___ F. Supp. 2d ___, 2014 WL 1931814, at *4 (D. Tex. May 14, 2014) ("While no circuit court has addressed the issue, the district courts that have done so consistently hold that Descamps does not apply retroactively to cases on collateral review.") (citations omitted); Brown v. United States, No. 2:13cv8052-VEH, 2014 WL 5795505, at *4 (N.D. Ala. Nov. 6, 2014) (unpublished) (Descamps did not announce a new rule of substantive law, rather, it merely clarified the proper analytical approach for determining whether a defendant's sentence should be enhanced under the ACCA); King v. United States, No. CV214-046, CR210-4, 2014 WL 5766774, at *3 (S.D. Ga. Nov. 5, 2014) (unpublished) (Descamps is not retroactively applicable as a substantive rule or as a new "watershed" procedural rule); Jones v. United States, Nos. 12-24521-CIV, 11-20767-CR, 2014 WL 4906217, at *6 (S.D. Fla. Sept. 30, 2014) (unpublished) (Descamps is not retroactively applicable on collateral review); Adams v. United States, Crim. No. 08-00155-CG, Civ. No. 14-00131-CG-M, 2014 WL 4685522, at *1 (S.D. Ala. Sept. 19, 2014) (unpublished) (same); Gray v. United States, No. 1:00-CR-0386-RWS, 2014 WL 749662, at *3 (N.D. Ga. July 28, 2014) (unpublished) (same); Bailey v. Warden, FCC Coleman-Medium, No. 5:09-cv-547-Oc-23PRL, 2014 WL 3707983, at *1 (M.D. Fla. July 25, 2014) (unpublished) (same).

Moreover, Petitioner failed to demonstrate that his current sentence exceeds the statutory maximum. Under the version of § 841 in effect at the time of Petitioner's offense conduct, plea, and sentencing, the statute provided that any person who knowingly or intentionally distributed, or possessed with intent to distribute any quantity of cocaine or cocaine base shall be sentenced to a term of imprisonment of not more than 20 years. See 21 U.S.C. § 841(b)(1)(C). The statute further provided that if that person committed the violation after one prior conviction for a felony drug offense had become final, the person shall be sentenced to a term of imprisonment of not more than 30 years. Id. The term "felony drug offense" is defined by statute as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." 21 U.S.C. § 802(44). Under Florida law, mere possession of cocaine is a third degree felony under Florida law and is punishable by up to 5 years imprisonment. See Fla. Stat. §§ 893.13(6)(a), 893.03(2)(a)(4), 775.082(3)(d). Possession of cocaine with an intent to sell or deliver the cocaine is a second degree felony punishable by up to 15 years imprisonment. See Fla. Stat. §§ 893.13(1)(a)(1), 893.03(2)(a)(4), 775.082(3)(c).

Petitioner does not dispute that in Lake County Case No. 94-CF-1276, he pleaded guilty to possession of cocaine, and was adjudicated guilty and sentenced to 5 years of probation. Likewise, he does not dispute that in Lake County Case No. 97-CF-538, he pleaded guilty to possession of cocaine and sale of cocaine, and was adjudicated guilty of both counts and sentenced to concurrent terms of 3 years and 4 months of imprisonment on each count. Any one of those three convictions triggered the 30-year maximum sentence for a prior "felony drug offense" under § 841(b)(1)(B) or (C). See United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (entry of nolo contendere plea with adjudication withheld to a third-degree drug felony under Florida law was a conviction upon which the 10-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B) was properly based). Therefore, even if Petitioner was not subject to the career offender enhancement under U.S.S.G. § 4B1.1, he was subject to the statutory maximum of 30 years (360 months) for each of his violations of 21 U.S.C. § 841 involving cocaine base, regardless of the quantity involved, because he had at least one prior conviction for a felony drug offense. See 21 U.S.C. § 841(b)(1)(C); see also 18 U.S.C. § 2(a) ("Whoever . . . aids, [or] abets . . . [a crime's] commission, is punishable as a principal."). Petitioner was sentenced to only 292 months on each federal count, which is below the 360-month maximum for each count. Therefore, he does not satisfy the fourth Bryant condition.

Finally, although Ground Three of Petitioner's § 2241 petition is not a sentencing claim (Ground Three asserts a challenge to the validity of the aiding and abetting statute, 18 U.S.C. § 2(a)), Petitioner is not entitled to review of that claim under the "savings clause" because he has not demonstrated that the claim was squarely foreclosed by prior Eleventh Circuit precedent at the time of his trial, or the time he could have filed a direct appeal or § 2255 motion. Further, Petitioner has not identified a retroactively applicable Supreme Court decision that overturned Circuit precedent on that issue. Therefore, his challenge to his conviction may not pass through the savings clause portal. See, e.g., Gonzalez-Gonzalez v. Warden, FCC Coleman-Medium, 579 F. App'x 955, 956 (11th Cir. 2014) (unpublished) (§ 2241 petitioner could not bring challenge to conviction through savings clause because he failed to show that his claim was squarely foreclosed by prior Circuit precedent at the time of his trial, direct appeal, and first § 2255 motion); Benitez v. Warden, FCI Miami, 564 F. App'x 497, 500 (11th Cir. 2014) (unpublished) (the requirement that a § 2241 petitioner seeking to proceed under the savings clause base his or her claim upon a retroactively applicable Supreme Court decision extends to a petitioner challenging the validity of his conviction); Johnson v. Warden, 551 F. App'x 489, 491 (11th Cir. 2014) (unpublished) (§ 2241 petitioner could not bring challenge to conviction through savings clause because he failed to show that his claim was squarely foreclosed by prior Circuit precedent); Jones v. Warden, FCC Coleman-Medium, 520 F. App'x 942, 945 (11th Cir. June 5, 2013) (unpublished) (petitioner's challenges to conviction did not open the portal of the savings clause, because he did not identify any retroactively applicable Supreme Court decision, much less one that established he was convicted of a nonexistent offense, and he raised some of the same challenges in both his direct appeal and his first § 2255).

III. CONCLUSION

In summary, review under § 2241 is unavailable because Petitioner challenges the validity of his conviction and sentence, not the execution of an initially valid confinement. Furthermore, he has not shown he is entitled to review via the savings clause portal of § 2255(e). Because Petitioner is plainly not entitled to pursue the relief he seeks under § 2241, this cause should be dismissed without further proceedings.

Accordingly, it is respectfully RECOMMENDED:

1. That Respondent's motion to dismiss (doc. 10) be GRANTED.

2. That the petition for writ of habeas corpus filed under 28 U.S.C. § 2241 (doc. 1) be DISMISSED for lack of jurisdiction.

3. That the clerk be directed to enter judgment accordingly and close the file.

GOVERNMENT'S NOTICE OF MAXIMUM PENALTIES, ELEMENTS OF OFFENSE. PERSONALIZATION OF ELEMENTS AND FACTUAL BASIS

COMES NOW the United States of America, by and through its undersigned Assistant United States Attorney, stating as follows:

A. MAXIMUM PENALTIES

The defendant has expressed a desire to enter a plea of guilty to the offenses charged in Count One through Four of the Superseding Indictment.

Count One charges the defendant with conspiracy to distribute more than five (5) grams of cocaine base, in violation of Title 21, United States Code Sections 846 and 841(b)(1)(B). The maximum penalties for Count One is a mandatory minimum of five (5) years imprisonment up to forty (40) years, a fine of up to $2,000,000, or both, a term of supervised release of at least four (4) years, and a special assessment of $50 per felony count for offenses committed prior to April 24, 1996, $100 per felony count thereafter; for organizations the amounts are $200 and $400 respectively, said special assessments to be due on the date of sentencing.

Count Two charges the defendant with distribution of more than five (5) grams of cocaine base, in violation of Title 21, United States Code Sections 841(a)(1) and 841(b)(1)(B). The maximum penalties for Count Two is a mandatory minimum of five (5) years imprisonment up to forty (40) years, a fine of up to $2,000,000, or both, a term of supervised release of at least four (4) years, and a special assessment of $50 per felony count for offenses committed prior to April 24, 1996, $100 per felony count thereafter; for organizations the amounts are $200 and $400 respectively, said special assessments to be due on the date of sentencing.

Count Three charges the defendant with distribution of cocaine base, in violation of Title 21, United States Code Sections 841(a)(1) and 841 (b)(1)(C). The maximum penalties for Count Three is twenty (20) years imprisonment, a fine of up to $1,000,000, or both, a term of supervised release of three (3) years, and a special assessment of $50 per felony count for offenses committed prior to April 24, 1996, $100 per felony count thereafter; for organizations the amounts are $200 and $400 respectively, said special assessments to be due on the date of sentencing.

Count Four charges the defendant with possession with intent to distribute cocaine base, in violation of Title 21, United States Code Sections 841(a)(1) and 841 (b)(1)(C). The maximum penalties for Count Four is twenty (20) years imprisonment, a fine of up to $1,000,000, or both, a term of supervised release of three (3) years, and a special assessment of $50 per felony count for offenses committed prior to April 24, 1996, $100 per felony count thereafter; for organizations the amounts are $200 and $400 respectively, said special assessments to be due on the date of sentencing.

Pursuant to the Government's Information and Notice of Prior Convictions, served on the defendant on February 26, 2004, the maximum penalties for Counts One through Four may be enhanced, as set forth therein.

B. ELEMENTS OF THE OFFENSE

Count One: The elements of an offense in violation of Title 21, United States Code, Sections 846 and 841(b)(1)(B) are:

Count Two: The elements of an offense in violation of Title 21, United States Code Sections 841(a)(1) and 841(b)(1)(B) are:

Count Three: The elements of an offense in violation of Title 21, United States Code Sections 841(a)(1) and 841(b)(1)(C) are:

Count Four: The elements of an offense in violation of Title 21, United States Code Sections 841(a)(1) and 841(b)(1)(C) are:

C. PERSONALIZATION OF ELEMENTS

Count One:

1. Do you admit that during the period of April 2003 through September 19, 2003, at Lake County, in the Middle District of Florida, two or more persons came together to accomplish a common and unlawful plan, as charged in the Superseding Indictment?

2. Did you, knowing the unlawful purpose of the plan, willfully join in it?

3. Do you admit that the object of the unlawful plan was to distribute more than five (5) grams of cocaine base, commonly known as "crack" cocaine?

Count Two;

1. Do you admit that, on April 17, 2003, at Lake County, you distributed cocaine base, commonly known as "crack" cocaine, as charged in the Superseding Indictment?

2. Do you admit that you did so knowingly and willfully?

3. Do you admit that the amount of cocaine base exceeded five (5) grams?

Count Three:

1. Do you admit that on May 7, 2003, at Lake County, you distributed cocaine base, commonly known as "crack" cocaine, as charged in the Superseding Indictment?

2. Do you admit that you did so knowing and willfully?

Count Four:

1. Do you admit that on September 19, 2003, at Lake County, you knowing and willfully possessed cocaine base, commonly known as "crack" cocaine, as charged in the Superseding Indictment?

2. Do you admit that you possessed the substance with the intent to distribute it?

D. FACTUAL BASIS

1. Purpose

The following facts are set forth to aid the Court in making an inquiry to satisfy it that there is a factual basis for the plea of guilty in accordance with Rule 11(f), Fed. R. Crim. P. The government reserves its right to provide all relevant information concerning the defendant and the offense committed to the Probation Office and the Court for sentencing purposes.

2. Facts

During the period of April 2003 through on or about September 19, 2003, at Lake County, in the Middle District of Florida, ISAAC LOVELL WOODSON, the defendant herein, conspired with Taurus Phillips to distribute more than five (5) grams of cocaine base.

On the afternoon of April 9, 2003, the defendant and Phillips participated in a hand-to-hand transaction in which Phillips distributed crack to a confidential source who was operating under the direction of the Drug Enforcement Agency (DEA). The transaction was subject to video and audio recording. The defendant was captured on video standing next to phillips when phillips distributed crack at the confidential source's motor vehicle. The defendant participated in the transaction by furnishing Phillips the defendant's car, which was used by Phillips to obtain a quantity of crack which he eventually distributed to the confidential source. The defendant also participated by asking the confidential source how much he wished to spend and by instructing the confidential source where to drive the confidential source's motor vehicle and park it in order to do the transaction.

The confidential source paid a total of $700 to Phillips for crack. The crack was subsequently analyzed by a DEA forensic chemist and determined to be cocaine base in the amount of 9.6 grams.

On April 17, 2003, at Lake County, the defendant engaged in a hand-tohand transaction wherein he distributed crack to the confidential source for $800 cash. The crack was subsequently analyzed by a DEA forensic chemist and found to contain cocaine base in the amount of 6.9 grams.

On May 7, 2003, at Lake County, the defendant engaged in a hand-tohand transaction wherein he distributed crack to the confidential source for $600. The crack was subsequently analyzed by a DEA forensic chemist and determined to contain cocaine base in an amount of 2.4 grams.

During the May 7, 2003 transaction, which occurred inside a trailer where the defendant resided, the defendant ordered the confidential source to disrobe and caused a third person to examine the confidential source's pager. When this occurred, there were other men with the defendant who had handguns in their waist areas. The defendant was concerned that the confidential source worked for law enforcement.

On September 19, 2003, the defendant was arrested at his workplace. On the same day, a trailer in Lake County where the defendant resided was searched and three grams of cocaine base, as well as a small quantity of cocaine powder and marihuana was recovered from inside the trailer, along with a digital scale and plastic baggies.

Titus Mobley would testify at trial that he purchased crack and powder cocaine, from the defendant, in one-half to one ounce quantities each time, approximately four (4) times during the summer of 2003.

Bobby Faniel would testify at trial that he purchased four (4) to six (6) grams of crack from the defendant every week, or every other week, during the summer of 2003.

REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY

The Defendant, by consent, has appeared before me pursuant to Rule 11, F.R.Cr.P. and Rule 6.01 (c)(12), Middle District of Florida Local Rules, and has entered a plea of guilty to Counts One through Four of the Superseding Indictment. After cautioning and examining the Defendant under oath concerning each of the subjects mentioned in Rule 11,1 determined that the guilty plea was knowledgeable and voluntary and that the offenses charged are supported by an independent basis in fact containing each of the essential elements of such offense. I therefore recommend that the plea of guilty be accepted and that the Defendant be adjudged guilty and have sentence imposed accordingly. The Defendant is in custody of the U.S. Marshal pending sentencing.

ACCEPTANCE OF PLEA OF GUILTY, ADJUDICATION OF GUILT AND NOTICE OF SENTENCING

Pursuant to the Report and Recommendation of the United States Magistrate Judge, to which there has been no timely objection, the plea of guilty of the Defendant to Counts One through Four of the Indictment is now Accepted and the Defendant is Adjudged Guilty of such offenses.

Sentencing is hereby scheduled for JUNE 23, 2005, at 11:00 A.M. in the Third Floor Courtroom #1, U.S. Courthouse, 207 N.W. Second Street, Ocala. Florida.

DONE and ORDERED.