IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case No. 4:99cr38-RH

Case No. 4:10cv257-RH/CAS

LATITUS D. SMITH,

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY § 2255 MOTION

Before the Court is a motion to vacate, set-aside, or correct sentence pursuant to

28 U.S.C. § 2255, and a supporting memorandum filed by Defendant Latitus D. Smith,

proceeding pro se. Docs. 65 (motion), 66 (memorandum). The Government has filed a

response in opposition to the motion. Doc. 69. Defendant has filed a supplemental

memorandum as well as a reply to the Government’s response. Docs. 70

(supplemental memorandum), 71 (reply). 

The matter was referred to the undersigned United States Magistrate Judge for

report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of

Florida Local Rule 72.2(B). After reviewing the record, the undersigned concludes no

evidentiary hearing is required and the § 2255 motion should be denied. See 28
Page 2 of 19

U.S.C.§ 2255 (providing that, “[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a

prompt hearing thereon”).

Background and Procedural History 

In the underlying criminal case, number 4:99-cr-38/RH, Defendant entered a

guilty plea to two counts, in connection with events that concluded on March 12, 1999:

(1) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a); and

(2) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). 

Doc. 28. Defendant reserved the right to appeal the Court’s denial of his motion to

suppress. See Doc. 51. In an August 1999 hearing before Judge Robert Hinkle, the

Court accepted the plea and scheduled sentencing for October 29, 1999. Doc. 23. A

pre-sentence investigation report (PSR) was completed and filed. See Doc. 24. 

Defendant filed objections to the PSR. Doc. 25. 

In a judgment rendered November 4, 1999, the Court sentenced Defendant to

192 months on each count, with the terms to run concurrently, to be followed by three

(3) years of supervised release on Count 1 and five (5) years of supervised release on

Count 2, with those terms to run concurrently with each other. Doc. 28 at 2-3. The

Court found the following Guideline Range:

Total Offense Level: 31

Criminal History Category: VI

Imprisonment Range: 188 to 235 months

Supervised Release Range: 3 to 5 years

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Doc. 28 at 7. The Court indicated, “This sentence, which falls at the lower end of the

guideline imprisonment range, is imposed in view of the nature and extent of the

defendant’s prior criminal history.” Id. 

Defendant appealed to the Eleventh Circuit Court of Appeals, challenging the

denial of his motion to suppress. Docs. 29, 51. In an opinion dated November 21,

2000, the Eleventh Circuit affirmed:

Latitus Smith pleaded guilty to drug and firearm charges, reserving

his right to appeal the district court’s denial of his motion to suppress. He

now appals from that denial.

We have considered the briefs and relevant portions of the record

and conclude that Smith’s arguments that the district court erred in

denying his motion to suppress are meritless. The trial court’s finding that

the search (or searches, as the case may be) did not exceed the scope of

Smith’s consent is not clearly erroneous. Thus, any searches were not

unreasonable.

Doc. 51. 

On June 11, 2010, Defendant, proceeding pro se, filed a motion pursuant to 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence, with a supporting

memorandum. Docs. 65 (motion), 66 (memorandum). In his § 2255 motion, Defendant

raises four grounds:

(1) Defendant’s two batteries violate Johnson v. United States, 559 U.S.

133, 130 S.Ct. 1265 (2010). Doc. 65 at 4. Defendant asserts his

sentence as an Armed Career Criminal is unconstitutional and improper

pursuant to Johnson, because his two battery convictions do not qualify

as Florida state priors for sentence enhancement under 18 U.S.C.

§ 924(e). Id.

(2) Defendant’s two battery convictions violate his Fifth, Sixth, and Eighth

Amendment rights. Doc. 65 at 5. Defendant asserts his armed career

offender status “is a violation of his due process right to a fair sentence; a

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violation of his Sixth Amendment right to an impartial sentence and a

violation to be incarcerated on cruel and unusual punishment of a

sentence that does not apply to him as an armed career offender.” Id.

(3) Defendant is actually innocent of being an armed career offender. 

Doc. 65 at 7. Defendant asserts actual innocence based on United States

v. Johnson and his Fifth, Sixth, and Eighth Amendment rights not to be

incarcerated based on a law that does not apply to him. Id. 

(4) Defendant asserts this Court has jurisdiction to consider this case,

pursuant to 28 U.S.C. § 2255(f)(3)-(4). Doc. 65 at 8. 

Defendant’s Ground 4 does not actually assert a claim and will not be further

addressed. This Court does have jurisdiction to consider Defendant’s motion.

Analysis

Grounds 1, 2, and 3 of Defendant’s motion claim he should not have been

sentenced as an armed career criminal because he did not have the requisite prior

violent crime convictions. Specifically, Defendant asserts, based on the Johnson

decision, his two prior battery convictions do not qualify as violent crimes for purposes

of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). As explained below,

Defendant’s arguments should be rejected. 

As an initial matter, the Court notes that the Government has not challenged the

timeliness or appropriateness of this § 2255 motion. In addition, although also not

raised by the Government, Smith’s sentencing claim appears procedurally defaulted. 

See, e.g., McKay v. United States, 657 F.3d 1190 (11th Cir. 2011). “Under the

procedural default rule, ‘a defendant generally must advance an available challenge to

a criminal conviction or sentence on direct appeal or else the defendant is barred from

presenting that claim in a § 2255 proceeding.’” Id. (quoting Lynn v. United States, 365

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F.3d 1225, 1234 (11th Cir. 2004)). As indicated above, in his direct appeal, Defendant

challenged the denial of his motion to suppress. See Doc. 51. Nothing indicates he

challenged his sentence, however. See id. Therefore, the challenge he now raises to

his sentence appears procedurally defaulted. Nevertheless, because the Government

appears to have waived this defense, the Court will address each of his grounds

individually. See, e.g., Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008)

(“Because the government did not assert procedural default as a defense in this action

but instead chose to respond on the merits, . . . the government has waived the

procedural default.”); Howard v. United States, 374 F.3d 1068, 1070 (11th Cir. 2004)

(“We also believe that he procedurally defaulted his claim by not raising it at his

sentencing proceeding where the error occurred, but the government procedurally

defaulted Howard’s procedural default by failing to raise this affirmative defense in the

district court.”); United States v. Jordan, 915 F.2d 622, 629 (11th Cir. 1990) (“In this

case, we need not decide whether it would be appropriate to require Jordan to

demonstrate ‘cause and prejudice’ because the government did not assert in the district

court that Jordan’s failure to present his claim on direct appeal should bar consideration

of the merits.”). But see Esslinger v. Davis, 44 F.3d 1515, 1524 (11th Cir. 1995)

(explaining that in habeas corpus case “circumstances may counsel that the district

court raise sua sponte a procedural bar to relief that the state has ‘waived’”); Beasley v.

United States, Nos. CV610-066/CR607-008, 2010 WL 4777535, at *1 n.3 (S.D. Ga.

Oct. 28, 2010) (noting government did not raise affirmative defense of procedural

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default, but “[n]evertheless, the Court is authorized to raise the issue sua sponte” in

habeas proceeding).

Ground 1: Applicability of Johnson

In Ground 1, Defendant asserts his sentence as an Armed Career Criminal is

unconstitutional and improper pursuant to Johnson, because his two battery convictions

do not qualify as Florida state priors for sentence enhancement under ACCA. § 924(e). 

Doc. 65 at 4. In his supporting memorandum, Defendant explains that two of his prior

offenses, used to enhance his sentence to armed career criminal status, were “a 1989

aggravated battery, and another aggravated battery in December of 1989.” Doc. 66 at

1. Defendant asserts these prior convictions “do not constitute ‘crimes of violence’ as

articulated by the Supreme Court in Johnson since there is no support for a finding that

the prior offenses involved a ‘violent force’ i.e., force capable of causing physical pain

or injury to another person.” Id. at 2. Defendant asserts these prior offenses were

“inappropriately considered to be crimes of violence.” Id. at 3. 

In its response, the Government points out that Defendant’s prior convictions at

issue were for aggravated battery. Doc. 69 at 2; see Doc. 24 (PSR). The Government

further points out that, in the Florida Statutes, the definition for aggravated battery

differs from that for battery, which the Johnson opinion addressed. Doc. 69 at 2-3. 

In his reply, Defendant argues he should not have been declared an Armed

Career Criminal based on his two prior aggravated batteries. Doc. 71 at 2. Defendant

asserts he pled nolo contendere to those prior offenses, and “received one year for

each offense, which was probation and withheld adjudication of that probation withheld

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until the completion of his one year probation for each offense until completed.” Id. 

Defendant states he completed one year of probation for each offense. Id. He states

he did not receive a felony sentence, “nor a felony conviction in the second degree for

either of the two aggravated batteries.” He states he “pled Nolo Contendere,

adjudication withheld, and one year probation of community control for each aggravated

battery.” Id. He argues Johnson applies here because he did not commit any

intentional or deliberate violence. Id. He states he “pled guilty to a lesser offense for

both aggravated batteries, and not the original charge of Section 784.045.” Id. That he

did not receive a felony punishment and was given one year of probation for each

aggravated battery offense “is indicative of its less serious nature of intentional

violence, as gauged by the Florida Legislature.” Id. at 3. 

As the Government asserts, the reasoning in the Johnson case does not apply to

this case. Johnson involved prior convictions for battery, whereas this case concerns

prior convictions for aggravated battery. Compare Fla. Stat. § 784.045 (Supp. 1988)

(aggravated battery) with Fla. Stat. § 784.03 (2002) (battery; felony battery). In

particular, the battery statute involved in Johnson provided:

784.03 Battery; felony battery.--

(1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person

against the will of the other; or

2. Intentionally causes bodily harm to another person.

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 (b) Except as provided in subsection (2), a person who commits battery 

 commits a misdemeanor of the first degree, punishable as provided 

 in s. 775.082 or 775.083.

(2) A person who has one prior conviction for battery, aggravated battery,

or felony battery and who commits any second or subsequent battery

commits a felony of the third degree, punishable as provided in s.

775.082, x. 775.083, or s. 775.084. For purposes of this subsection,

“conviction” means a determination of guilty that is the result of a plea or a

trial, regardless of whether adjudication is withheld or a plea of nolo

contendere is entered.

Fla. Stat. § 784.03 (2002). In Johnson, the U.S. Supreme Court addressed “whether a

felony conviction for battery under Fla. Stat. § 784.03(2) meets the definition of ‘violent

felony’ in 18 U.S.C. § 924(e)(2)(B)(i).” Johnson, 130 S.Ct. at 1270. In doing so, the

Court considered “whether the term ‘force’ in 18 U.S.C. § 924(e)(2)(B)(i) has the

specialized meaning that it bore in the common-law definition of battery” and concluded

that it did not: “We think it clear that in the context of a statutory definition of ‘violent

felony,’ the phrase ‘physical force’ means violent force – that is force capable of

causing physical pain or injury to another person.” Id. The Court concluded that

Johnson’s prior conviction for simple battery, for which “the element of ‘actually and

intentionally touching’ under Florida’s battery law is satisfied by any intentional physical

contact, ‘no matter how slight,’” did not constitute a “violent felony” for purposes of

sentencing under ACCA. Johnson, 130 S.Ct. at 1269-70 (quoting State of Fla. v.

Hearns, 961 So. 2d 211, 218 (Fla. 2007)). 

In contrast, Smith’s prior offenses at issue were for aggravated batteries, which

occurred on or about May 8, 1989, and December 29, 1989. Doc. 24 at 7-8. 

Accordingly, the applicable aggravated battery statute provides:

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784.045 Aggravated battery.--

(1)(a) A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent

disability, or permanent disfigurement; or

2. Uses a deadly weapon.

 (b) A person commits aggravated battery if the person who was the

victim of the battery was pregnant at the time of the offense and

the offender knew or should have known that the victim was

pregnant.

(2) Whoever commits aggravated battery shall be guilty of a felony of the

second degree, punishable as provided in s. 775.082, s. 775.083, or s.

775.084.

Fla. Stat. § 784.045 (Supp. 1988); see Fla. Stat. § 784.045 (1989) (same). The PSR

indicates that both victims were male; thus, subsection (1)(a) is the applicable provision

here. See Doc. 24. (Although Smith raised objections to the PSR, no objections

addressed the identity of the victims. See Doc. 25.) 

Under subsection (1)(a), there are two potential bases for Smith’s conviction, one

of which involves the intentional or knowing causation of great bodily harm and the

other of which involves the use of a deadly weapon. See Turner v. Warden Coleman

FCI, 2013 WL 646089 (11th Cir. Feb. 22, 2013). “Either way, the crime ‘has as an

element the use, attempted use, or threatened use of physical force,’ § 924(e)(2)(B)(i),

indeed, ‘violent force – that is, force capable of causing physical pain or injury to

another person.’” Turner, at *11 (quoting Johnson, 130 S.Ct. at 1271). Therefore,

Smith’s prior convictions for aggravated battery qualify as violent felonies for purposes

of ACCA. See id.; see also Brown v. U.S., 384 F. App’x 53 (3d Cir. 2010) (affirming

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dismissal of § 2241 petition and rejecting argument based on Johnson that sentence

was improperly enhanced: “Brown’s sentence, however, was enhanced based on his

prior conviction for aggravated battery under Fla. Stat. § 783.045, not simple battery

under Fla. Stat. § 784.03. Thus, his reliance on Johnson is misplaced.”); United States

v. Santiago, 601 F.3d 1241, 1247 (11th Cir. 2010) (“Looking to Florida law in the

appropriate enhancement context, Santiago’s guilty plea followed by a sentence of

probation and a withholding of adjudication on the 2001 Florida offense constitutes a

conviction for the purpose of enhancing his sentence under the ACCA.”). This ground

should be denied.

Ground 2: Violation of Fifth, Sixth, and Eighth Amendments

In Ground 2, Defendant asserts that his status as an armed career offender

constitutes “a violation of his due process right to a fair sentence; a violation of his Sixth

Amendment right to an impartial sentence and a violation to be incarcerated on cruel

and unusual punishment of a sentence that does not apply to him as an armed career

criminal.” Doc. 65 at 5. In his memorandum, Defendant asserts that, pursuant to

Johnson, “the Florida felony offense of battery by actually and intentionally touching

another does not have as an element the use of physical force against the person of

another . . . and thus does not constitute a ‘violent felony’ under § 924(e)(1).” Doc. 66

at 3. Defendant references two paragraphs, 29 and 30, of his PSR, for his prior

offenses in 89-617-CFA and 89-1038-CF-A. Id.; see Doc. 24 at 7-8. 

In its response, Government states Defendant entered guilty pleas before Judge

Hinkle and Defendant does not assert any defect in that proceeding, during which

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Defendant was represented by counsel. Doc. 69 at 4. The Government further states

Defendant’s sentence of 192 months falls within the maximum allowed under the law

and he was properly sentenced under ACCA. Id. Defendant’s Fifth, Sixth, and Eight

Amendment rights were not violated.

In a supplemental memorandum, and in his reply, Defendant points out that he

“objected to aggravated battery” at sentencing. Docs. 70, 71 at 4-5; see Doc. 25

(Defendant’s Objections to PSR). Defendant asserts that, with the prior offenses, he

did not plead guilty “to any first, nor second degree aggravated batteries, nor did . . .

[he] plead to any deliberate or intentional violence.” Doc. 71 at 5. 

In this Ground, Defendant continues to make the erroneous argument, relying on

Johnson, that because his prior offenses were batteries, his sentence was improperly

enhanced as an armed career criminal. As explained in the analysis of Ground 1,

supra, however, because Defendant’s prior convictions were aggravated batteries, the

Johnson case is distinguishable. See Doc. 24 at 7-8. 

Further, as the Government points out, Defendant entered a guilty plea to the

federal indictment in this case. See Doc. 69 at 4; see also Doc. 1 (indictment), Doc. 21

(plea agreement), Doc. 22 (criminal minutes - arraignment and plea). That indictment

specifically listed Defendant’s prior state convictions for aggravated battery:

COUNT TWO

That on or about March 12, 1999, in the Northern District of Florida,

the defendant,

LATITUS D. SMITH

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having been previously convicted of crimes punishable by a terms [sic] of

imprisonment exceeding one year, did knowingly possess a firearm in and

affecting interstate commerce, that is, 

1. a. on or about September 20, 1989, LATITUS D. SMITH was

convicted in the State of Florida of the offense of possession of

cocaine;

 b. on or about September 20, 1989, LATITUS D. SMITH was

convicted in the State of Florida of the offense of aggravated

battery;

 c. on or about December 20, 1989, LATITUS D. SMITH was convicted

in the State of Florida of the offense of aggravated battery;

 d. on or about January 13, 1994, LATITUS D. SMITH was convicted in

the State of Florida of the offense of conspiracy to traffic cocaine;

2. for each of these crimes, LATITUS D. SMITH was subject to

punishment by a term of imprisonment exceeding one year;

3. thereafter, LATITUS D. SMITH did knowingly possess a firearm, a

North American Arms .22 short caliber five-shot mini-revolver;

4. this firearm had previously been transported in interstate commerce;

and all this was done in violation of Title 18, United States Code, Sections

922(g) and 924(e).

Doc. 1 at 1-2 (emphasis added). Defendant entered a guilty plea to this count. Doc. 21

at 2; Doc. 22. The written plea includes a statement of facts, which provides in

pertinent part: “At the time of the discovery of the firearm, Smith was a convicted felon

as charged in Count Two of the indictment.” Doc. 21 at 5. Defendant acknowledged

the sentencing court “will make the final determinations of facts as to any sentence and

as to any mitigating or aggravating factors concerning the proper sentence to be

imposed.” Id. at 6. The written plea further provided that “[a]dverse rulings shall not be

grounds for withdrawal of defendant’s plea.” Id. As referenced above, Defendant

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specifically reserved the right to appeal the denial of his motion to suppress. Id. at 7. 

The criminal minutes from Defendant’s arraignment and plea reflect that he entered the

guilty plea, the written plea agreement was filed with the incorporated statement of

facts, the plea was accepted, and the Court adjudicated Defendant guilty on both

counts. Doc. 22. 

Based on the foregoing, this ground lacks merit and should be denied. 

Ground 3: Actual, Factual, and Legal Innocence 

 

In Ground 3, Defendant alleges he is actually innocent of being an armed career

offender. Doc. 65 at 7. Defendant asserts his “actual innocence is based on United

States v. Johnson and his Fifth, Sixth and Eighth Amendment rights not to be

incarcerated based on a law and USSG § 4B1.4 that does not apply to him at all.” Id. 

In his memorandum, Defendant asserts he is “Factually, Actually, and Legally Innocent

of being a Arm Career Offender or a Career Offender based on two prior state of

Florida predicates.” Doc. 66 at 4. Defendant further asserts his possession of a

weapon is also a non-violent offense pursuant to Begay v. United States, 553 U.S. 137

(2008). Doc. 66 at 4. Finally, Defendant asserts he is actually innocent “because the

court relied on Florida State improper documentation.” Id. at 5.

In response, the Government points out that Defendant’s argument is again

based on Defendant’s assertion that Johnson applies to his case. Doc. 69 at 4. 

Johnson does not apply here. Id. Florida’s aggravated battery statute includes the

violent force required by 18 U.S.C. § 924(e), because the Florida statute requires the

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act to cause great bodily harm, permanent disability or disfigurement; or use of a deadly

weapon; or battery upon a pregnant victim. Id. 

In his reply, Defendant again asserts that he is “Actually, Factually, and Legally

innocent” of being an Armed Career Criminal. Doc. 71 at 7. Defendant asserts that

because the Government never produced the proper state plea agreements, hearing

transcripts, and/or sentencing transcripts to verify that Defendant met the requirements

for an ACCA sentence, Defendant is actually, factually, and legally innocent of being an

Armed Career Criminal. Doc. 71 at 5-6. Defendant asserts, “The presentence report

also states that the government did not even have the proper Taylor v. United States,

495 U.S. 575, material in which to enhance [Defendant’s sentence] to Armed Career

Offender status for the two priors.” Id. at 5. Defendant also states, “In the governments

response it admits that it does not have the proper United States v. Shepard, 544 U.S.

13, (2005) material, in which to have enhanced” Defendant’s sentence. Id. Defendant

asserts the Court enhanced his sentence “in violation of his Fifth Amendment right to

notice of the State’s priors and in violation of [ACCA]” because “they never had the

Taylor and/or Shepard documentation.” Id. at 6. 

To the extent Defendant’s argument in this ground again asserts the applicability

of Johnson, that argument should again be rejected, for the reasons set forth above. 

Similarly, to the extent Defendant argues he is actually innocent of being an Armed

Career Criminal in light of Johnson, that argument should also be rejected. 

Defendant also argues, in his supporting memorandum, that his possession of a

weapon is a non-violent offense under Begay and, therefore, he is “actually innocent of

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being a armed or career offender, for a weapon in his possession as being violent.” 

Doc. 66 at 4. Defendant’s point here is not clear. The prior offenses he has challenged

in his § 2255 motion were for aggravated battery, not carrying a concealed weapon, the

offense at issue, not in Begay, but in United States v. Archer, 531 F.3d 1347 (11th Cir.

2008). See Begay, 553 U.S. at 148 (holding that driving under influence of alcohol is

not “violent felony” under ACCA); Archer, 531 F.3d at 1352 (applying Begay analysis

and concluding that carrying concealed weapon “may no longer be considered a crime

of violence under the Sentencing Guidelines”). To the extent Defendant is challenging

another of his prior offenses, none appear to have been for carrying a concealed

weapon; thus, it does not appear that Defendant’s sentence was enhanced based on

such a conviction. See Doc. 25 at 6-9.

As Defendant indicates, he did raise objections to the PSR. Doc. 25. In

particular, Defendant “dispute[d] that he was convicted twice for Aggravated Battery.” 

Id. at 2. Defendant asserted that because “no certified copies of the convictions has

[sic] ever been provided, the Defendant maintains this is incorrect until he is shown

certified copies of these convictions.” Id. at 1. Defendant objected to any sentence

enhancement “as the Government has never filed a notice that the Government was

seeking to enhance the Defendant.” Id. at 2. Defendant also maintained “he does not

qualify for enhancement as there was no aggravated assault committed during this

offense.” Id. 

After Defendant’s objections, an Addendum to the Presentence Report was

prepared, dated October 21, 1999, addressing those objections. See Doc. 24 at 18-21. 

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In particular, concerning Defendant’s prior convictions on two counts of aggravated

battery, the Addendum refers the Court to the plea agreement and the indictment as

well as actions of the U.S. Probation Office:

By signing the Plea and Cooperation Agreement, both the defendant and

his attorney acknowledge the existence of these two convictions. 

Additionally, a representative of the U.S. Probation Office personally

inspected the state court files related to these two convictions in Quincy,

Florida, and obtained copies of court documents confirming the

defendant’s convictions in these cases. It was also determined through a

review of court records on file with Clerk of Court in Quincy, Florida, that

case 89-1038 does exist and it reflects that Smith was convicted of

aggravated battery.

Id. at 18; see Docs. 1 and 21. Concerning notice to the Defendant of the sentence

enhancement, the Addendum explains:

Chapter 4 enhancements under the Guidelines do not require any notice

to the defendant by the government. The only required notice is that

provided in the Presentence Report. In U.S. v. Cobia, 41 F.3d 1473 (11th

Cir. 1995), the Appellate Court ruled that Cobia was notified of the

possibility of § 924(e) in the plea agreement; at Cobia’s plea hearing when

the court advised Cobia that the court might be required to apply § 924(e)

and impose a mandatory minimum of fifteen years imprisonment or a

maximum term of life imprisonment; and again in the presentence report

filed after the plea hearing. The Appellate Court further found that under

those circumstances, the requirements of due process and the Federal

Rules of Criminal Procedure were satisfied and the district court properly

sentenced the defendant pursuant to § 924(e). The Appellate Court

further found that 18 U.S.C. § 924(e) requires the district court to enhance

the defendant’s sentence in cases where applicable, regardless of

whether the government seeks such enhancement. In this case, Smith

was advised of the enhanced penalties under § 924(e) at the time of his

plea hearing by way of the Plea Agreement and when the Court advised

him of the minimum and maximum penalties for the counts to which he

was about to plea. Smith was further advised of the enhanced penalties

under § 924(e) when he received the Presentence Report.

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Doc. 25 at 19-20. At the sentencing hearing on October 29, 1999, the Court adopted

the factual findings and guideline application in the PSR. Id. (cover sheet).

Therefore, to the extent Defendant argues the sentencing court relied on

improper documentation to enhance his sentence, as indicated above, Defendant pled

guilty to the federal charges in this case, which included, in Count 2, a listing of his prior

state felony convictions. See Doc. 1 (indictment), Doc. 21 (plea agreement), Doc. 22

(criminal minutes - arraignment and plea). See also, e.g., United States v. Williams,

156 F. App’x 260 (11th Cir. 2005) (explaining that defendant “admitted in open court

that he had been convicted of the three offenses which triggered the § 924(e)

enhancement” and “an admission by a defendant is sufficient to support a sentencing

enhancement”). Further, the Eleventh Circuit has held that the plain language of

§ 924(e) is mandatory: “Because the statute clearly indicates that the intent of

Congress was to require mandatory enhancement, we hold that sentence enhancement

pursuant to § 924(e) should automatically be applied by the courts regardless of

whether the Government affirmatively seeks such enhancement.” Cobia, 41 F.3d at

1475. 

Before a defendant is sentenced pursuant to § 924(e), he must be notified of the

mandatory minimum and maximum penalty as required by Federal Rule of Criminal

Procedure 11(c)(1). Cobia, 41 F.3d at 1476. In addition, “due process requires

reasonable notice of and opportunity to be heard concerning the prior convictions.” Id. 

Here, Defendant had notice of the possible sentence by way of the plea agreement, the

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plea hearing, and the PSR. Docs. 21, 22, 24. Defendant had notice of the prior

convictions in the indictment and the PSR. Docs. 1, 24. 

Based on the foregoing, this ground lacks merit and should be denied.

Conclusion

Defendant’s claims are unsupported by the record and lack merit. No evidentiary

hearing is required. See, e.g., Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir.

1989). The § 2255 motion, Doc. 65, should be denied.

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that “[t]he

district court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant,” and if a certificate is issued “the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule 11(b)

provides that a timely notice of appeal must still be filed, even if the court issues a

certificate of appealability. 

After review of the record, the undersigned finds no substantial showing of the

denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 483–84 (2000) (explaining how to satisfy this showing) (citation omitted). 

Therefore, it is also recommended that the Court deny a certificate of appealability in its

final order.

The second sentence of new Rule 11(a) provides that “[b]efore entering the final

order, the court may direct the parties to submit arguments on whether a certificate

should issue.” If there is an objection to this recommendation by either party, that party

Case Nos. 4:99cr38-RH and 4:10cv257-RH/CAS
Page 19 of 19

may bring this argument to the attention of the district judge in the objections permitted

to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s motion pursuant to 28 U.S.C. § 2255 (Doc. 65) be DENIED.

2. A certificate of appealability be DENIED.

IN CHAMBERS at Tallahassee, Florida, on April 19, 2013.

s/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Within fourteen (14) days after being served with a copy of this report and

recommendation, a party may serve and file specific, written objections to the

proposed findings and recommendations. A party may respond to another

party's objections within fourteen (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.

Case Nos. 4:99cr38-RH and 4:10cv257-RH/CAS