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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 1:03-cr-00059-MP-AK

SUSAN DYE MUMMAU,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 183, Motion to Vacate under 28 U.S.C. § 2255,

by Susan Dye Mummau. Defendant is represented by counsel. The Government has filed a

response, Doc. 186, and the time for filing a reply has long since expired. This cause is therefore

in a posture for decision. Having carefully considered the matter, the Court recommends that the

motion to vacate be denied. 

Defendant pled guilty to conspiracy to manufacture, distribute, and possess with intent to

distribute more than one thousand marijuana plants. Docs. 34, 78, 81, & 82. At the change of

plea hearing, however, the Government conceded that Defendant’s involvement in the

conspiracy was limited to more than one hundred but less than one thousand plants, which

placed her minimum mandatory sentence at five years imprisonment with a maximum penalty of

forty years. Doc. 185 at 22-23.

On May 20, 2004, Defendant appeared for sentencing. Her attorney, Jon Uman, agreed

that the appropriate sentencing range, after the safety-valve provision was applied, was 24-30

months. Doc. 182 at 3. He nevertheless argued for a downward departure for pre-investigation

and pre-arrest rehabilitation and for lack of opportunity to cooperate. Id. at 4. After hearing

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counsel’s arguments, the Court concluded that without a 5K1.1 motion, it did not find “any basis

for a departure that has not already been adequately covered or taken into consideration by the

guidelines.” Id. at 25. The Court therefore concluded: “I have got the guidelines and I have got

to stay with the guidelines because I find no legal basis to depart.” Id. The Court then sentenced

Defendant to 24 months imprisonment, “the low end of the guidelines.” Defendant did not

appeal this sentence. She was released from confinement on March 21, 2006,

http://www.bop.gov/iloc2/LocateInmate.jsp, and is presently serving a 4-year period of

supervised release.

At the time of Defendant’s sentencing, Blakely, which involved the constitutionality of

state sentencing guidelines, was pending decision in the United States Supreme Court. The

opinion in Blakely was finally issued on June 24, 2004, exactly thirty days later. Booker, which

found Blakely applicable to the Federal Sentencing Guidelines, was not decided until January 12,

2005.

On this occasion, Defendant argues that she should be resentenced based on the Court’s

conclusion that the Sentencing Guidelines were mandatory, a decision which constituted plain

error that was not harmless. She also argues that her attorney was ineffective for failing to

challenge her sentence on Blakely grounds.

Neither Blakely nor Booker applies to matters on collateral review, as “Booker’s

constitutional rule falls squarely under the category of new rules of criminal procedure that do

not apply retroactively to § 2255 cases on collateral review.” Varela v. United States, 400 F.3d

864, 868 (11th Cir. 2005). Further, at the time that Defendant was sentenced, Apprendi

controlled and had been interpreted by this circuit as having no applicability to the Sentencing

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Guidelines. United States v. Sanchez, 269 F.3d 1250, 1262 (11th Cir. 2001). Even after

Blakely, the Eleventh Circuit persisted in finding it inapplicable to the Sentencing Guidelines. 

United States v. Reese, 382 F.3d 1308, 1312 (11th Cir. 2004). Though Reese was later vacated in

light of Booker, it remained the law of the Eleventh Circuit for months after Defendant’s

sentencing. Thus, if the Eleventh Circuit could not foresee the applicability of Blakely to the

Sentencing Guidelines, then counsel should not be faulted for being equally devoid of such

clairvoyance. 

In light of the foregoing, it is respectfully RECOMMENDED that Defendant’s motion

to vacate, Doc. 183, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 1st day of August, 2007.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 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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