IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 5:00-cr-21-MW-GRJ

VINCENT L SMITH,

Defendant.

____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 298, Defendant’s “Motion to Vacate

Sentence Pursuant to Rule 60(b).” The motion stems from Defendant’s jury-trial

conviction for conspiracy to possess with intent to distribute cocaine base, in violation of

21 U.S.C §§ 841 and 846. Doc. 200 (judgment). Defendant received an enhanced

mandatory life sentence under 21 U.S.C § 841(b)(1)(A)(iii) based on prior felony drug

convictions. See Doc. 26 (21 U.S.C § 851 Notice of Enhancement, setting forth three 1

prior state felony controlled-substance convictions). Defendant’s conviction and

sentence were affirmed on direct appeal. Doc. 244. In affirming the conviction and

sentence, the Eleventh Circuit rejected Defendant’s claim pursuant to Apprendi v. New

Where a defendant has two or more “prior convictions for a felony drug offense”

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which have become final, he shall be sentenced to a mandatory term of life

imprisonment where he is found accountable for “50 grams or more of a mixture or

substance...which contains cocaine base.” 21 U.S.C. § 841(b)(1)(A). The jury

specifically found Defendant guilty of a conspiracy involving “Fifty (50) grams or more of

a mixture or substance containing cocaine base, commonly known as ‘crack.’” Doc.

165. Petitioner was also convicted of one count of money laundering and one count of

possession of a firearm by a convicted felon. 

Case 5:00-cr-00021-MW-GRJ Document 303 Filed 05/12/14 Page 1 of 5
Jersey, 530 U.S. 466 (2000), that the sentence enhancement for prior convictions

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was an element of the crime that should have been proven to the jury. Id. at 244.

Defendant filed a motion to vacate under 28 U.S.C § 2255 asserting four claims

for relief, including a reassertion of his Apprendi claim. Doc. 245. The Court denied

the motion on the merits. Docs. 253, 259. Defendant did not appeal. Defendant

unsuccessfully sought relief by way of a habeas corpus petition under 28 U.S.C § 2241.

See Smith v. United States, 1:10-cv-230-MP-GRJ (4/15/11) (dismissing petition for lack

of jurisdiction). Defendant did not appeal. Defendant has also unsuccessfully pursued

sentence-reduction motions under the Fair Sentencing Act of 2010, 18 U.S.C § 3582.

Docs. 263, 279. 

In the instant motion, Defendant contends that he is entitled to Fed. R. Civ. P.

60(b) relief from the judgment denying his motion to vacate. Defendant argues that he

is entitled to relief because his indictment did not list the prior offenses that qualified

him for a mandatory life sentence, and therefore the fact of such prior convictions was

not proven to the jury beyond a reasonable doubt. As support for this claim, Defendant

cites Alleyne v. United States, ___U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)

(applying rule in Apprendi and holding “any fact that increases the mandatory minimum

is an ‘element’ that must be submitted to the jury”). Defendant contends that pursuant

Apprendi held that “[o]ther than the fact of a prior convictoin, any fact that 2

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at

490.

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to Alleyne and Booker , his sentence should not have been enhanced because it was 3

not premised on jury-found facts. Defendant contends that Alleyne rendered the

Court’s decision denying his § 2255 motion “unlawful and unenforceable.” Doc. 298. 

Collateral attacks on the legality of a federal sentence typically must be brought

under § 2255. Darby v. Hawk–Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). Courts

must look past the label of a motion in order to determine its actual legal effect and

must treat the motion according to its legal effect, rather than its formal name. United

States v. Jordan, 915 F.2d 622, 624–25 (11th Cir. 1990). Rule 60(b) motions cannot be

used to “evade the second or successive petition bar . . . by either adding a new ground

for relief or attacking the federal court's previous rejection of a claim on the merits.”

Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc) (holding that

the rule announced in Gonzalez v. Crosby, 545 U.S. 524 (2005), which decided that

state prisoners could not circumvent the bar on successive habeas petitions by filing

Rule 60(b) motions, applies equally to federal prisoners). Therefore, when a federal

prisoner seeks to “assert or reassert a claim for relief, instead of pointing out a defect in

the integrity of the earlier § 2255 motion preceding in his case . . . his motion is the

equivalent of a second or successive motion.” Id.

In this case, it is clear that the instant motion is the “equivalent of a second or

United States v. Booker, 543 U.S. 220 (2005) (U.S. Sentencing Guidelines 3

violate the Sixth Amendment right to a trial by jury to the extent that they permit a judge,

under a mandatory guidelines system, to increase a defendant's sentence based on

facts that are neither found by a jury nor admitted by the defendant. 543 U.S. at 244.

Booker rendered the Sentencing Guidelines “effectively advisory.” Id. at 245–46. 

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successive motion.” Id. Because Defendant was denied collateral relief previously

under § 2255, he is barred from seeking such relief in this Court absent prior

certification from the Eleventh Circuit. 28 U.S.C. §§ 2255(h), 2244(b)(3). There is

nothing in the record that reflects that Defendant has been granted leave by the

Eleventh Circuit to file a second or successive motion to vacate, and thus this Court

lacks the requisite authorization to entertain the claims raised in the instant motion.

Moreover, under the circumstances presented Alleyne affords Defendant no

relief. Alleyne did not disturb the Supreme Court's previous holding in

Almendarez–Torres v. United States, 523 U.S. 224, 247 (1998), that a prior conviction

is not considered an element of a crime, and such prior conviction does not have to be

proven to a jury beyond a reasonable doubt. U.S. v. Dames ___ Fed. Appx. ___, 2014

WL 591043, *2 (11 Cir. 2014) (affirming sentence enhancement under 21 U.S.C § 851

th

that increased mandatory-minimum sentence due to prior felony conviction) (citing

Alleyne, 133 S.Ct. at 2160 n.1). In Alleyne, the Supreme Court reaffirmed that

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pursuant to Apprendi “‘facts that increase the prescribed range of penalties to which a

criminal defendant is exposed’ are elements of the crime,” and applied Apprendi to

facts that increase mandatory-minimum sentences. Alleyne, 133 S.Ct. at 2160.

However, the Court noted that Almendarez-Torres “recognized a narrow exception to

this general rule for the fact of a prior conviction. Because the parties do not contest

that decision’s vitality, we do not revisit it for purposes of our decision today.” Id. at

Although unpublished opinions are not binding on this Court, they are 4

persuasive authority. 11 Cir. R. 36-2. th

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2160 n.1. Thus, because Alleyne did not overrule the Almendarez-Torres exception,

Defendant cannot rely on Alleyne to challenge the enhancement of his sentence for

prior convictions. Dames, 2014 WL 591043 *2. 

For these reasons, it is respectfully RECOMMENDED:

That the Motion to Vacate Sentence Pursuant to Rule 60 (b), Doc. 298, should

be DENIED. 

IN CHAMBERS this 12 day of May 2014. 

th

s/ Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), 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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