JS 44 (Rev. 10/20) FLSD Revised 02/12/2021 CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided 

by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating 

the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) NOTICE: Attorneys MUST Indicate All Re-filed Cases Below.

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF

THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

(d)Check County Where Action Arose: MIAMI- DADE MONROE BROWARD PALM BEACH MARTIN ST. LUCIE INDIAN RIVER OKEECHOBEE HIGHLANDS

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)

(For Diversity Cases Only) and One Box for Defendant)

1 U.S. Government 3 Federal Question PTF DEF PTF DEF

Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5

Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions

CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act

120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC

130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729 (a))

140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment

150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking

151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce

152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent – Abbreviated New Drug Application 460 Deportation

Student Loans 340 Marine

840 Trademark

880 Defend Trade Secrets

 Act of 2016

470 Racketeer Influenced and 

Corrupt Organizations

(Excl. Veterans) 345 Marine Product LABOR SOCIAL SECURITY 480 Consumer Credit 

 (15 USC 1681 or 1692)

153 Recovery of Overpayment Liability

 Injury Product Liability

710 Fair Labor Standards 861 HIA (1395ff) 485 Telephone Consumer 

Protection Act (TCPA)

of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV

160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/

190 Other Contract Product Liability 380 Other Personal 740 Railway Labor Act 864 SSID Title XVI Exchange

195 Contract Product Liability 360 Other Personal Property Damage 751 Family and Medical 865 RSI (405(g)) 890 Other Statutory Actions

196 Franchise Injury 385 Property Damage Leave Act 891 Agricultural Acts

362 Personal Injury - Product Liability 790 Other Labor Litigation 893 Environmental Matters

Med. Malpractice 791 Empl. Ret. Inc. 895 Freedom of Information

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Security Act FEDERAL TAX SUITS Act

210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 870 Taxes (U.S. Plaintiff 896 Arbitration

220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure

230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 

Sentence

871 IRS—Third Party 26 USC 

7609 Act/Review or Appeal of Agency Decision

240 Torts to Land 443 Housing/

Accommodations Other: 950 Constitutionality of State Statutes

245 Tort Product Liability 445 Amer. w/Disabilities - 530 General IMMIGRATION

290 All Other Real Property Employment 535 Death Penalty 462 Naturalization Application 

446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions

448 Education 555 Prison Condition

560 Civil Detainee – Conditions of 

Confinement

V. ORIGIN (Place an “X” in One Box Only)

Transferred from

another district

(specify)

6 Multidistrict

Litigation

Transfer

8 Multidistrict 

Litigation 

– Direct 

File

9 Remanded from 

Appellate Court 

1 Original

Proceeding

2 Removed 

from State 

Court 

3 Re-filed 

(See VI 

below)

4 Reinstated 

or

Reopened

5 7 Appeal to 

District Judge 

from Magistrate

Judgment

VI. RELATED/

RE-FILED CASE(S)

(See instructions): a) Re-filed Case YES NO b) Related Cases YES NO

JUDGE: DOCKET NUMBER:

VII. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless diversity):

LENGTH OF TRIAL via days estimated (for both sides to try entire case)

VIII. REQUESTED IN

COMPLAINT:

CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23 DEMAND $ CHECK YES only if demanded in complaint:

JURY DEMAND: Yes No

ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MY KNOWLEDGE

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY : RECEIPT # AMOUNT IFP JUDGE MAG JUDGE

PERSONAL PROPERTY

Hernan Orozco United States of America

Miami Dade Miami Dade Dianne E. Carames, 1900 N. Bayshore DR, STE 1A Miami, FL 33132 United States Atttorney's Office, 99 NE 4th ST, Miami, FL, 33132

■

■

Hon. Beth Bloom 21-cr-20169-BB 28 USC 2855, Motion to Vacate Judgment in 21-CR-20169-Bloom

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JS 44 (Rev. 10/20) FLSD Revised 10/14/2020

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required 

by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the 

use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil 

complaint filed. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use 

only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, 

giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the 

time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation 

cases, the county of residence of the “defendant” is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting 

in this section “(see attachment)”.

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in 

one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box. 

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the 

Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and 

box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 

is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this 

section for each principal party.

IV. Nature of Suit. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of 

suit code that is most applicable. Click here for: Nature of Suit Code Descriptions. 

V. Origin. Place an “X” in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition 

for removal is granted, check this box.

Refiled (3) Attach copy of Order for Dismissal of Previous case. Also complete VI.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict 

litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this 

box is checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.

Remanded from Appellate Court. (8) Check this box if remanded from Appellate Court. 

VI. Related/Refiled Cases. This section of the JS 44 is used to reference related pending cases or re-filed cases. Insert the docket numbers and the 

corresponding judges name for such cases.

VII. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional 

statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553

 Brief Description: Unauthorized reception of cable service

VIII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

Date and Attorney Signature. Date and sign the civil cover sheet.

Case 1:22-cv-23487-BB Document 1 Entered on FLSD Docket 10/25/2022 Page 2 of 8
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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

 

CASE NO. 22-cv-______-BB 

(Underlying Criminal Case No. 21-CR-20169-BB) 

 

HERNAN OROZCO,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________/

MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255 

 

Hernan Orozco, through undersigned counsel, moves this Court to vacate his 

sentence, pursuant to 28 U.S.C. § 2255. As explained below, Mr. Orozco was sentenced as an armed career criminal based on two prior Florida convictions involving 

violations of Fla. Stat. 893.13 for possession with intent to sell cocaine. See Presentence Investigation Report (“PSI”), Crim. DE 28, ¶ 31. In light of the decision this 

year in United States v. Eugene Jackson, __ F.4th __, 2022 WL 2080280 (11th Cir. 

June 10, 2022)1, those prior convictions no longer qualify as ACCA predicates. As a 

result, Mr. Orozco’s sentence exceeds the statutory maximum, and this Court should 

vacate that illegal sentence.

PROCEDURAL HISTORY 

In July 2021, Mr. Orozco pled guilty to one count of being a felon in possession 

of a firearm, in violation of 18 U.S.C. § 922(g)(1) and one count of possession with 

1

It should be noted that the Jackson opinion has been vacated and supplemental briefing has been ordered; however, all arguments herein remain the same. 

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intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). (Crim. 

DE 23). The government agreed to dismiss a third count of the indictment, which 

charged possession of a firearm in furtherance of a drug trafficking crime. The 

charges stemmed from a search of his residence in February 2021. (Crim DE 22). 

Ordinarily, he would have been subject to a 10-year statutory maximum as to 

the felon in possession count. See 18 U.S.C. § 924(a)(2). However, the probation officer determined that he was subject to the Armed Career Criminal Act (“ACCA”) and 

its 15-year mandatory minimum sentence because he had one prior conviction for a 

crime of violence, from 1996, and two prior “serious drug offenses” from 2007 and 

2011. See 18 U.S.C. § 924(e)(1), (e)(2)(A). 

Trial counsel did not object to his classification as an ACCA and agreed in the 

plea agreement that his two § 893.13 convictions qualified as “serious drug offenses” 

for purposes of the ACCA enhancement in the plea agreement. At the time, any argument to the contrary was foreclosed by United States v. Smith, 775 F.3d 1262 (11th 

Cir. 2014) and its progeny. 

Less than a year after his sentencing, the Eleventh Circuit issued a published 

opinion in United States v. Jackson, __ F.4th __, 2022 WL 2080280 (11th Cir. June 

10, 2022). In light of Jackson, Mr. Orozco’s prior § 893.13 offenses are no longer 

ACCA predicates. Thus, his sentence is now unlawful, and this Court should vacate 

it.

GROUNDS FOR RELIEF 

I. Mr. Orozco Is No Longer an Armed Career Criminal 

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In Jackson, the Eleventh Circuit held that cocaine-related convictions under 

Fla. Stat. § 893.13 from before July 1, 2017 do not qualify as “serious drug offenses” 

under the ACCA, § 924(e)(2)(A)(ii). That was so, the Court explained, because the 

elements of those offenses encompassed a cocaine derivative called ioflupane. But, 

as of September 2015, the federal government had de-scheduled ioflupane as a federally controlled substance. Florida followed suit on July 1, 2017. The upshot is that 

any § 893.13 cocaine-related convictions pre-dating July 1, 2017 could have involved 

ioflupane. And, under the categorical approach, federal courts must assume that they

did. Because ioflupane was not a federally controlled substance at the time of the 

defendant’s § 922(g) offense in Jackson, the Court held that his pre-July 1, 2017 

§ 893.13 cocaine-related convictions were categorically overbroad and did not qualify.

That holding squarely applies to this case. Mr. Orozco was subject to the ACCA 

enhancement based on two prior § 893.13 convictions for cocaine. Those convictions 

occurred in 2007 and 2011, well before the cutoff of July 1, 2017. And Mr. Orozco

committed the § 922(g) offense in 2021, well after the federal government de-scheduled ioflupane in 2015. Thus, under Jackson, Mr. Orozco is no longer subject to the 

ACCA. And, as explained below, there is no procedural barrier to remedying his illegal sentence.

II. Mr. Orozco’s Jackson Claim is Cognizable Under § 2255 

Section 2255(a) authorizes a federal prisoner to collaterally attack his sentence 

on the ground that it “was imposed in violation of the . . . laws of the United States . 

. . , or that the sentence was in excess of the maximum authorized by law.” 28 U.S.C. 

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§ 2255(a). Here, Mr. Orozco contends that, in light of Jackson, he was erroneously 

subjected to the ACCA, such that his 15-year ACCA sentence exceeds the non-ACCA 

10-year statutory maximum. That error is plainly cognizable and correctable under

§ 2255, as the en banc Eleventh Circuit has recognized. See Spencer v. United States, 

773 F.3d 1132, 1143 (11th Cir. 2014) (en banc) (“We can collaterally review [under 

§ 2255] a misapplication of the Armed Career Criminal Act because . . . that misapplication results in a sentence that exceeds the statutory maximum.”).

III. Jackson Applies Retroactively to Cases on Collateral Review 

Under Welch v. United States, 578 U.S. 120 (2016), the Eleventh Circuit’s decision in Jackson applies retroactively to this initial § 2255 proceeding because it is a 

“substantive rule.” In Welch, the Supreme Court held that its decision in Johnson v. 

United States, 576 U.S. 591 (2015)—invalidating the ACCA’s residual clause—was a 

“substantive rule” with retroactive effect because it “changed the substantive reach 

of the Armed Career Criminal Act, altering the range of conduct or the class of persons that the Act punishes.” Welch, 578 U.S. 129–30 (quotation omitted). That logic 

squarely applies here: Jackson changed the substantive scope of the ACCA by narrowing its “serious drug offense” definition, excluding § 893.13 offenses that had previously qualified as ACCA predicates since at least the 2014 decision in Smith. As a 

substantive rule, Jackson has retroactive effect in this initial § 2255 proceeding.

IV. Timeliness Poses No Bar to Relief 

Under § 2255(f), a § 2255 motion must be filed within one year of the latest of 

four triggering events. As relevant here, under § 2255(f)(1), the motion must be filed 

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within one year of the date on which the conviction becomes final. In a case where a 

defendant does not file a direct appeal, a conviction becomes “final” for purposes of § 

2255(f)(1), when the time for filing a direct appeal expires. See Fed. R. App. P. 

4(b)(1)(A)(i), (6) (providing that a defendant's notice of appeal must be filed within 

fourteen days after the written judgment of conviction is entered on the criminal 

docket); see also Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) 

(“[W]hen a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires.”) (citation omitted).

Here, Mr. Orozco’s judgment was entered on October 8, 2021 and he did not 

file a direct appeal. So, under § 2255(f)(1), he had to file a § 2255 motion by October 

22, 2022. 

REQUEST FOR RELIEF 

 

Mr. Orozco respectfully requests that the Court vacate his illegal sentence and 

set this case for re-sentencing so that he may be re-sentenced without the ACCA enhancement.

Respectfully Submitted,

By: /s/ Dianne E. Carames

Dianne E. Carames

1900 N. Bayshore Dr. Suite 1A

Miami, FL 33132

(305) 607-8078

Dianne@puglisicarames.com

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 CERTIFICATE OF SERVICE 

I certify that on October 23, 2022, I electronically filed the foregoing document 

with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 

is being served this day on all counsel of record or pro se parties identified on the 

attached Service List in the manner specified, either via transmission of Notices of 

Electronic Filing generated by CM/ECF or in some other authorized manner for those 

counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. 

/s/ Dianne E. Carames

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