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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. CASE NO. 1:02-cr-00038-MP-AK

MAHMOUD ELDICK,

Defendant.

_____________________________/

O R D E R

This matter is before the Court on Doc. 203, Report and Recommendation of the

Magistrate Judge, recommending that Defendant's motion under 28 U.S.C. § 2255 be denied. 

Defendant filed objections, Doc. 207, which the Court has reviewed. Defendant pled guilty to

one count of fraudulently obtaining money from health care programs by filing claims falsely

representing that he was a licensed physician in Florida and one count of dispensing

hydrocodone. With regard to the hydrocodone count, the Indictment charged that Defendant

dispensed “a quantity of hydrocodone, a Schedule III controlled substance. All in violation of

Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C).” Doc. 15. This was in error

either because (1) hydrocodone was misidentified as a Schedule III controlled substance, when it

should have been listed as a Schedule I or II substance, or (2) the penalty provision, which

covers offenses involving Schedule I and II controlled substances, was wrong and should have

been stated as § 841(b)(1)(D). The ambiguity was important because Defendant was looking at

either a 5-year maximum sentence (if hydrocodone is a Schedule III substance) or a 20-year

maximum sentence (if it is a Schedule I or II substance). 

At the very beginning of the plea colloquy, the government orally moved to amend the

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Case No: 1:02-cr-00038-MP-AK

Indictment, changing the penalty provision citation from § 841(b)(1)(C) to § 841(b)(1)(D),

meaning that Defendant faced only a five year statutory maximum. During the hearing, but

before the ultimate acceptance of the guilty plea, the Court repeatedly informed Defendant that

the penalty he faced was only 5, not 20, years on Count Two. Defendant repeatedly assured the

Court that he understood. He also knew he was facing a 5- year maximum sentence, and he went

forward with the plea anyway. He clearly acknowledged during the hearing (1) that he knew the

penalty for Count Two was 5 years, (2) that he had discussed that fact and also the pros and cons

of going to trial with his counsel, and (3) that he knew that by pleading guilty he was giving up

any defenses he might have to the charges. The law is well established that a “guilty plea means

something. It is not an invitation to a continuing litigation dialogue between a criminal defendant

and the court.” Murray v. United States, 145 F.3d 1249, 1254 (11th Cir. 1998). 

Defendant now argues that he did not know the maximum penalty was only five years,

and that he would not have briefed the government if he had known he was facing only a five

year sentence. The Court finds this argument without merit. First, he confessed to the crime

immediately upon arrest, and second he was given multiple chances to inform the Court during

the plea colloquy that he was somehow taken by surprise by the classification of the charge

against him. Thus, no harm has been shown by any actions of his counsel regarding the

scheduling of hydrocodone. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Report and Recommendation of the Magistrate Judge is adopted and

incorporated herein. Defendant's motion under 28 U.S.C. § 2255 is denied.

DONE AND ORDERED this 23rd day of March, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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