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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:10cr89/MCR/EMT

 3:13cv363/MCR/EMT

YANCEY JACK GARRINGER

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s Amended Motion by a Person

in Federal Custody to Vacate, Set Aside, or Correct Sentence under § 2255 and

supporting memorandum of law (ECF No. 154). The Government filed a response

(ECF No. 159), and Defendant filed a reply (ECF No. 161). The case was referred

to the undersigned for the issuance of all preliminary orders and any

recommendations to the district court regarding dispositive matters. See N.D. Fla.

Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a careful

review of the record and the arguments presented, it is the opinion of the undersigned

that Defendant has not raised any issue requiring an evidentiary hearing and that the

§ 2255 motion should be denied. See Rules Governing Section 2255 Cases 8(a)

and (b). 

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PROCEDURAL BACKGROUND1

Defendant was charged in a six-count indictment with conspiracy to distribute

and possess with intent to distribute five hundred (500) grams or more of a mixture

and substance containing cocaine in violation of 21 U.S.C. § 841(b)(1)(B)(ii) (“Count

One”); three counts of knowingly and intentionally distributing and possessing with

intent to distribute an indeterminate amount of cocaine on three dates certain in

violation of 21 U.S.C. § 841(b)(1)(C) (“Counts Two through Four”); possession with

intent to distribute five hundred (500) grams or more of cocaine on a date certain in

violation of 21 U.S.C. § 841(b)(1)(B)(ii) (“Count Five”); and using, carrying, and

possessing a firearm during and in relation to a drug trafficking crime (“Count Six”)

(ECF No. 14). Randall Lockhart from the Office of the Federal Public Defender was

appointed to represent Defendant (ECF No. 13).

The original trial date, October 4, 2010, was continued upon defense motion

in order to allow counsel time for more meaningful consultation with his client (see

ECF Nos. 20, 21, 22). A change of plea hearing was held on October 22, 2010, at

which time Defendant declined to enter a plea (see ECF Nos. 27–28). On November

9, 2010, the defense moved to suppress the cocaine and firearm seized from the glove

compartment of the vehicle Defendant was driving at the time of his arrest, as well

as the statement he made to law enforcement after the seizure of the cocaine and

firearm (ECF No. 32). Both Defendant’s motion and the Government’s response

acknowledged that a Global-Positioning-System (“GPS”) tracker had been placed on

Defendant’s vehicle five days prior to the stop (ECF Nos. 32, 36). The court held a

1

 Detailed statements of facts describing the offense conduct are set forth in the Second Final

Presentence Investigation Report as well as the Government’s response to the instant motion and will

be set forth herein only as necessary (ECF Nos. 64, 159) .

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hearing on the motion to suppress immediately preceding jury selection on the first

day of trial (see ECF Nos. 38, 110). After considering testimony and argument, the

court denied the motion, and Defendant proceeded to trial (see ECF No. 45). On the

third day of the proceedings, the jury returned a verdict of guilty as to Counts One,

Three, Four, Five, and Six (ECF No. 50). It did not reach a verdict as to Count Two

(i.d.). 

The Probation Office prepared multiple versions of Defendant’s Presentence

Report. The Second Final Presentence Report, dated February 8, 2011, calculated

Defendant’s base offense level as 26 (ECF No. 64, PSR ¶ 52). Because there were

no adjustments, his total offense level was also 26 (ECF No. 64, PSR ¶ 61). 

Defendant had no scorable criminal history points, so his criminal history category

was I (ECF No. 64, PSR ¶67). The applicable advisory guidelines range was 63 to

78 months (ECF No. 64, PSR ¶ 99). 

On February 14, 2011, at a hearing that was originally scheduled as a

sentencing proceeding, the district court released attorney Randall Lockhart from

representing Defendant due to conflicts with his client (ECF Nos. 67, 109). The court

directed that a Faretta2

 hearing be conducted to determine whether Defendant could

proceed pro se with or without standby counsel (ECF Nos. 67, 109). At the later

hearing, which was held before then-Magistrate Judge Miles Davis, Defendant

requested substitute counsel, and attorney Clinton Couch, Esq., was appointed to

represent him on February 17, 2011 (see ECF Nos. 75, 103). 

Represented by Mr. Couch, on March 30, 2011, Defendant was sentenced to

concurrent terms of 63 months as to Counts One, Three, Four and Five, followed by

2 Faretta v. California, 422 U.S. 806 (1975)

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a consecutive term of 60-months imprisonment on Count Six (ECF Nos. 83, 85,

104).3

Defendant appealed, challenging the district court’s denial of his motion for

judgment of acquittal. The Eleventh Circuit Court of Appeal affirmed on April 5,

2012 (ECF No. 128).

Defendant timely filed his motion to vacate, set aside or correct sentence in

June of 2013 (ECF No. 152). His amended motion to vacate, filed pursuant to court

order, is presently before the court. In his amended motion, Defendant raises three

grounds for relief. He claims that: (1) counsel was constitutionally ineffective for

failing to raise a Fourth Amendment claim; (2) Defendant was factually innocent of

violating §§ 841(b)(1)(A) or (b)(1)(B) because the drug quantity was neither charged

in the indictment nor proven beyond a reasonable doubt; and (3) the district court

lacked subject matter jurisdiction to convict Defendant of Count Six due to a defect

in the indictment. The Government opposes the motion in its entirety. 

3

 Defendant has an additional sentence to serve beyond the sentence in this case. In 2014,

Defendant was charged with escape in the Northern District of Georgia, Case No. 1:14cr287/SCJ. 

He entered a guilty plea pursuant to a written agreement providing that the parties agreed to a

specific sentence of twelve months and one day (N.D. Ga. Case 1:14cr287/SCJ, ECF No. 38-1). The

court sentenced Defendant to the agreed-upon term to be served consecutively to the sentence

imposed in this case (see N.D. Ga. Case 1:14cr287/SCJ, ECF Nos. 44, 58). Defendant’s appeal

challenging the court’s subject matter jurisdiction and the Government’s standing in the Georgia case

is still pending (N.D. Ga. Case 1:14cr287/SCJ, ECF Nos. 47, 66). On August 9, 2015, this district

court reduced Defendant’s sentence slightly, to a term of 60 months on Counts One, Three, Four and

Five, followed by a 60-month consecutive term on Count Six. 

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LEGAL ANALYSIS

General Standard of Review

Collateral review is not a substitute for direct appeal, and therefore the grounds

for collateral attack on final judgments pursuant to § 2255 are extremely limited. A

prisoner is entitled to relief under section 2255 if the court imposed a sentence that

(1) violated the Constitution or laws of the United States, (2) exceeded its

jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject

to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190,

1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 ‘is reserved for

transgressions of constitutional rights and for that narrow compass of other injury that

could not have been raised in direct appeal and would, if condoned, result in a

complete miscarriage of justice.’” Lynn v. United States, 365 F.3d 1225, 1232 (11th

Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception

recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be

shown that the alleged constitutional violation “has probably resulted in the

conviction of one who is actually innocent . . . .” 

The law is well established that a district court need not reconsider issues

raised in a section 2255 motion which have been resolved on direct appeal. Rozier

v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211

F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th

Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal,

it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d

at 1343 (quotation omitted). Broad discretion is afforded to a court’s determination

of whether a particular claim has been previously raised. Sanders v. United States,

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373 U.S. 1, 16 (1963) (“identical grounds may often be proved by different factual

allegations . . . or supported by different legal arguments . . . or couched in different

language . . . or vary in immaterial respects”). 

Because a motion to vacate under section 2255 is not a substitute for direct

appeal, issues which could have been raised on direct appeal are generally not

actionable in a section 2255 motion and will be considered procedurally barred. 

Lynn, 365 F.3d at 1234–35; Bousley v. United States, 523 U.S. 614, 621 (1998); 

McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is

“‘available’ on direct appeal when its merits can be reviewed without further factual

development.” Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent

a showing that the ground of error was unavailable on direct appeal, a court may not

consider the ground in a section 2255 motion unless the defendant establishes (1)

cause for not raising the ground on direct appeal, and (2) actual prejudice resulting

from the alleged error, that is, alternatively, that he is “actually innocent.” Lynn, 365

F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for

procedural default, a defendant must show that “some objective factor external to the

defense prevented [him] or his counsel from raising his claims on direct appeal and

that this factor cannot be fairly attributable to [defendant’s] own conduct.” Lynn, 365

F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute

cause. See Nyhuis, 211 F.3d at 1344.

Ineffective assistance of counsel claims are generally not cognizable on direct

appeal and are properly raised by a § 2255 motion regardless of whether they could

have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503

(2003); see also United States v. Franklin, 694 F.3d, 1, 8 (11th Cir. 2012). In order

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to prevail on a constitutional claim of ineffective assistance of counsel, a defendant

must demonstrate both that counsel’s performance was below an objective and

reasonable professional norm and that he was prejudiced by this inadequacy. 

Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S.

362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In

applying Strickland, the court may dispose of an ineffective assistance claim if a

defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S.

at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladay v.

Haley, 209 F.3d 1243, 1248 (11th Cir.2000) (“[T]he court need not address the

performance prong if the defendant cannot meet the prejudice prong, or vice versa.”).

In determining whether counsel’s conduct was deficient, this court must, with

much deference, consider “whether counsel’s assistance was reasonable considering

all the circumstances.” Strickland, 466 U.S. at 688; see also Dingle v. Sec’y for

Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to

examine counsel’s performance in a highly deferential manner and “must indulge a

strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance.” Hammond v. Hall, 586 F.3d 1289, 1324 (11th Cir. 2009)

(quoting Strickland, 466 U.S. at 689); see also Chandler v. United States, 218 F.3d

1305, 1315–16 (11th Cir. 2000) (discussing presumption of reasonableness of

counsel’s conduct); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989)

(emphasizing that petitioner was “not entitled to error-free representation”). 

Counsel’s performance must be evaluated with a high degree of deference and

without the distorting effects of hindsight. Strickland, 466 U.S. at 689. To show

counsel’s performance was unreasonable, a defendant must establish that “no

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competent counsel would have taken the action that his counsel did take.” Gordon

v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); Chandler,

218 F.3d at 1315. When reviewing the performance of an experienced trial counsel,

the presumption that counsel’s conduct was reasonable is even stronger, because

“[e]xperience is due some respect.” Chandler, 218 F.3d at 1316 n.18.

With regard to the prejudice requirement, a defendant must establish that, but

for counsel’s deficient performance, the outcome of the proceeding would have been

different. Strickland, 466 U.S. at 694. “The likelihood of a different result must be

substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011)

(quoting Strickland). For the court to focus merely on “outcome determination,”

however, is insufficient; “[t]o set aside a conviction or sentence solely because the

outcome would have been different but for counsel’s error may grant the defendant

a windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364,

369–70 (1993); Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 754 (11th Cir.

2010). A defendant therefore must establish “that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart,

506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). Or in the case of alleged

sentencing errors, a defendant must demonstrate that there is a reasonable probability

that, but for counsel’s errors, the result of the proceeding would have been less harsh

due to a reduction in the defendant’s offense level. Glover v. United States, 531 U.S.

198, 203–04 (2001). A significant increase in sentence is not required to establish

prejudice, as “any amount of actual jail time has Sixth Amendment significance.” Id.

at 203.

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To establish ineffective assistance, Defendant must provide factual support for

his contentions regarding counsel’s performance. Smith v. White, 815 F.2d 1401,

1406–07 (11th Cir. 1987). Bare, conclusory allegations of ineffective assistance are

insufficient to satisfy the Strickland test. See Boyd v. Comm’r, Ala. Dep’t of Corr.,

697 F.3d 1320, 1333–34 (11th Cir. 2012); Garcia v. United States, 456 F. App’x 804,

807 (11th Cir. 2012) (citing Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir. 1993));

Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992); Tejada v. Dugger, 941

F.2d 1551, 1559 (11th Cir. 1991); Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.

1990) (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

Finally, the Eleventh Circuit has recognized that given the principles and

presumptions set forth above, “the cases in which habeas petitioners can properly

prevail . . . are few and far between.” Chandler, 218 F.3d at 1313. This is because

the test is not what the best lawyers would have done or even what most good lawyers

would have done, but rather whether some reasonable lawyer could have acted in the

circumstances as defense counsel acted. Dingle, 480 F.3d at 1099; Williamson v.

Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). “Even if counsel’s decision appears

to have been unwise in retrospect, the decision will be held to have been ineffective

assistance only if it was ‘so patently unreasonable that no competent attorney would

have chosen it.’” Dingle, 480 F.3d at 1099 (quoting Adams v. Wainwright, 709 F.2d

1443, 1445 (11th Cir. 1983)). The Sixth Circuit has framed the question as not

whether counsel was inadequate, but rather whether counsel’s performance was so

manifestly ineffective that “defeat was snatched from the hands of probable victory.” 

United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). Regardless of how the

standard is framed, under the prevailing case law it is abundantly clear that a moving

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defendant has a high hurdle to overcome to establish a violation of his constitutional

rights based on his attorney’s performance. A defendant’s belief that a certain course

of action that counsel failed to take might have helped his case does not direct a

finding that counsel was constitutionally ineffective under the standards set forth

above. 

An evidentiary hearing is unnecessary when “the motion and files and records

conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b); 

Rosin v. United States,786 F.3d 873, 877 (11th Cir. 2015); Gordon v. United States,

518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of

counsel warrants an evidentiary hearing. Gordon, 518 F.3d at 1301 (citing Vick v.

United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a

defendant must allege facts that, if true would prove he is entitled to relief. See

Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not

required on frivolous claims, conclusory allegations unsupported by specifics, or

contentions that are wholly unsupported by the record. See Winthrop–Redin v.

United States, 767 F .3d 1210, 1216 (11th Cir. 2014) (explaining that “a district court

need not hold a hearing if the allegations [in a § 2255 motion] are . . . based upon

unsupported generalizations”) (internal quotation marks omitted); Peoples v.

Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even affidavits that amount to

nothing more than conclusory allegations do not warrant a hearing. Lynn, 365 F.3d

at 1239. Finally, disputes involving purely legal issues can be resolved by the court

without a hearing. 

Ground One

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Defendant first contends that his conviction must be reversed because the

Government admittedly installed a GPS device on his vehicle without a warrant in

violation of the Fourth Amendment. Defendant asserts that trial and appellate

counsel each failed to raise this issue and in this respect each was constitutionally

ineffective.

When counsel’s alleged ineffectiveness involves a failure to competently

litigate a Fourth Amendment claim, in order to demonstrate actual prejudice, the

defendant must prove that his Fourth Amendment claim is meritorious and that there

is a reasonable probability that the verdict would have been different absent the

excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574,

2582–83, 91 L. Ed. 2d 305 (1986); Zakrzewski v. McDonough, 455 F.3d 1254, 1260

(11th Cir. 2006). Regardless of whether a defendant’s guilt is established by the

excludable evidence, the proper question is whether the outcome of the proceedings

would have been different had the motion to suppress been filed and the evidence

been excluded. Jones v. United States, 224 F.3d 1251, 1259 (11th Cir. 2000); Huynh

v. King, 95 F.3d 1052, 1058–59 (11th Cir. 1996); Thomas v. Newsome, 821 F.2d

1550, 1552 (11th Cir. 1987); see also Ward v. Dretke, 420 F.3d 479, 488 (5th Cir.

2005). 

At the commencement of the suppression hearing, defense counsel stated

“[o]ne aspect of this, which the Court may anticipate that we’re challenging, which

we’re actually not, is the placement of the GPS monitor on Mr. Garringer’s vehicle. 

I’ve looked at that, for the record, the case law substantiated that it can be done. I’m

not challenging that.” (ECF No. 110 at 2). Testimony adduced at the hearing

established that Defendant was observed driving his Mercedes to deliver cocaine on

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July 3, 2010, and that four days later law enforcement placed the GPS tracking device

on the exterior of the vehicle while it was parked in a public parking lot at

Defendant’s apartment complex (ECF No. 111 at 40–43). Law enforcement intended

to conduct another controlled buy on July 9, 2010, two days after the installation of

the GPS device (ECF No. 111 at 44).

Defendant is correct that the Supreme Court has held that attachment of a GPS

tracking device to a vehicle is a search within the meaning of the Fourth Amendment. 

United States v. Jones, 132 S. Ct. 945 (2012). Jones, however, was not decided until

January 23, 2012, during the pendency of Defendant’s appeal. In July of 2010, when

the GPS tracker was placed, circuit precedent provided that law enforcement only

needed reasonable suspicion to support lawful installation of the device. See United

States v. Michael, 645 F.2d 252, 257, 259 (5th Cir. 1981)4; see also United States v.

Lewis, No. 12-600011-CR, 2012 WL 4838889, at *1–2 (S.D. Fla. Oct. 10, 2012)

(approving warrantless installation and monitoring of a GPS tracking device based

on reasonable suspicion where installation occurred prior to Supreme Court’s

decision in Jones, citing Michael, 645 F.2d at 252; also noting that Government had

obtained a warrant upon learning that the Jones decision was imminent); United

States v. Nelson, No. CR612-005, 2012 WL 3052914, at *2 (S.D. Ga. July 25, 2012)

(finding no Fourth Amendment violation when GPS tracking device was placed,

based on reasonable suspicion, and removed, before Supreme Court’s Jones decision,

citing Michael); United States v. Rosas-Illescas, 872 F. Supp. 2d 1320, 1326–27

(N.D. Ala. 2012) (approving warrantless placement of GPS tracking device based on

4

All cases from the former Fifth Circuit handed down by the close of business on September

30, 1981, are binding on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209

(11th Cir. 1981) (en banc).

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reasonable suspicion, noting even if there was a Fourth Amendment violation, agents

acted in good faith based on Michael, and suppression was not warranted). In

Defendant’s case, he had been observed driving the vehicle in question to deliver

cocaine prior to placement of the GPS device and thus there was at least reasonable

suspicion of his involvement in drug sales before the device was installed. Thus, Mr.

Lockhart’s assessment of the law at the time he filed the motion to suppress was

correct, and he was not constitutionally ineffective for his decision not to challenge

the placement of the GPS device on Defendant’s vehicle.

Because law enforcement acted in good faith and in accordance with circuit

precedent, even if there were a Fourth Amendment violation, suppression would not

be appropriate. The Supreme Court has held that searches conducted in objectively

reasonable reliance on binding appellate precedent are not subject to the exclusionary

rule, because “suppression would do nothing to deter police misconduct in those

circumstances.” Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 2423–24

(2011); see also Herring v. United States, 555 U.S. 135, 144 (2009) (“To trigger the

exclusionary rule, police conduct must be sufficiently deliberate that exclusion can

meaningfully deter it, and sufficiently culpable that such deterrence is worth the price

paid by the justice system . . . But when the police act with an objectively reasonable

good faith belief that their conduct is lawful, or when their conduct involves only

simple, isolated negligence, the deterrence rationale loses much of its force and

exclusion cannot pay its way.”); United States v. Lebowitz, 676 F.3d 1000, 1010

(11th Cir. 2012) (evidence seized in good-faith reliance on Eleventh Circuit precedent

(later overturned by the Supreme Court) precluded exclusion of that evidence);

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United States v. Owens, 445 F. App’x 248, 250–51 (11th Cir. 2011). Stated simply,

there was no basis on which to exclude the evidence. 

Due process of law requires that a defendant receive effective assistance of

appellate counsel on his direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). 

To prevail on a claim for ineffective assistance of appellate counsel, a defendant must

show that (1) appellate counsel’s performance was deficient, and (2) but for counsel’s

deficient performance he would have prevailed on appeal. Shere v. Sec'y Fla. Dep't

of Corr., 537 F.3d 1304, 1310 (11th Cir. 2008); see Philmore v. McNeil, 575 F.3d

1251, 1264 (11th Cir. 2009) (holding that claims for ineffective assistance of

appellate counsel are governed by the same standards applied to trial counsel under

Strickland, 466 U.S. at 687). To determine whether defense counsel rendered

ineffective assistance by failing to raise certain issues on appeal, the court may

consider the merits of the issues the defendant alleges counsel was derelict in not

raising on appeal. Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir. 1988); Reutter

v. Secretary for Dept. of Corr., 232 F. App’x 914, 917 (11th Cir. 2007) (determining

that counsel’s decision not to raise a particular argument on appeal, in light of his

having raised several important claims, was likely a strategic decision to “winnow out

weaker arguments”). Of course, appellate counsel is not ineffective for failing to

raise claims that are reasonably considered to be without merit. Brown v. United

States, 720 F.3d 1316, 1335 (11th Cir. 2013); Shere, 537 F.3d at 1311; United States

v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (citing Alvord v. Wainwright, 725

F.2d 1282, 1291 (11th Cir. 1984). In this case, given that the placement of the GPS

device without a warrant was lawful at the time of its placement, Defendant’s Fourth

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Amendment claim did not have merit. As such, counsel was not constitutionally

ineffective for failing to pursue this issue on appeal. 

Ground Two

Defendant contends that he is actually and factually innocent of violating

§ 841(b)(1)(A) or (b)(1)(B) because the drug quantity required to establish a violation

of these statutes was never charged in the indictment, submitted to the jury or proven

beyond a reasonable doubt. He further asserts that the district court increased his

sentence using the “preponderance of the evidence” standard to determine drug

quantity, resulting in a sentence in excess of the statutory maximum of the “catch-all

provision” of § 841(b)(1)(C). Defendant is mistaken. 

As noted above, although Defendant was charged in Counts Two, Three and

Four with possession with intent to distribute indeterminate amounts of cocaine in

violation of 21 U.S.C. § 841(b)(1)(C), he was charged in Count Five with possession

with intent to distribute five-hundred (500) grams or more of a mixture and substance

containing cocaine in violation of 21 U.S.C. § 841(b)(1)(B)(ii). He was also charged,

of course, in Count One with conspiracy to possess with intent to distribute 500

grams or more of cocaine in violation of 21 U.S.C. § 841(b)(1)(B)(ii) (ECF No. 14). 

The jury was neither asked, nor required, to find a specific quantity of cocaine with

respect to the § 841(b)(1)(C) charges in Counts Two, Three and Four. As to Counts

One and Five, however, upon a finding of guilt, the jury was specifically required to

state whether it unanimously found Defendant responsible for either “500 grams or

more of Cocaine” or “Less than 500 grams of Cocaine” (ECF No. 50 at 2, 3). The

jury made the former finding as to both charges. This conclusion provided the basis

for the threshold penalties of 21 U.S.C. § 841(b)(1)(B) to apply. Any further factual

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findings by the district court were properly made under the preponderance of the

evidence standard. See, e.g., United States v. Barsoum, 763 F.3d 1321, 1333 (11th

Cir. 2014) (government bears the burden of establishing challenged amount of drug

quantity by a preponderance of the evidence); United States v. Almedina, 686 F.3d

1312, 1315 (11th Cir. 2012) (citing United States v. Frazier, 89 F.3d 1501, 1506 (11th

Cir. 1996); U.S.S.G. § 2D1.1 cmt n.12 (2011)). The PSR calculated that Defendant

was accountable for 1.433 kilograms of cocaine. Neither this finding, nor the district

court’s acceptance thereof based on the record before it, was improper. There was no

error, and thus to the extent Defendant raises an ineffective assistance of counsel

claim, counsel was not constitutionally ineffective for his failure to object, as counsel

is not ineffective for failing to preserve or argue a meritless claim. Denson v. United

States, 804 F.3d 1339, 1342 (11th Cir. 2015) (citing Freeman v. Attorney General,

Florida, 536 F.3d 1225, 1233 (11th Cir. 2008)); see also Sneed v. Florida Dep’t of

Corrections, 496 F. App’x 20, 27 (11th Cir. 2012) (failure to preserve meritless

Batson claim not ineffective assistance of counsel); Lattimore v. United States, 345

F. App’x 506, 508 (11th Cir. 2009) (counsel not ineffective for failing to make a

meritless objection to an obstruction enhancement). 

Ground Three

Defendant last argues that the court did not have jurisdiction to adjudicate him

guilty of the firearm charge in Count Six because it “failed to state an offense” under

Bailey v. United States, 516 U.S. 137 (1995). Defendant complains that the

indictment improperly charged that he “did knowingly use, carry and possess a

firearm,” given that “using or carrying” and “possessing” are separately proscribed

offenses under § 924(c). Again, Defendant’s argument ignores the jury’s verdict.

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As an initial matter, the indictment properly identified the statute under which

Defendant was charged. See United States v. Haile, 685 F.3d 1211, 1217–18 (11th

Cir. 2012) (indictment that specifically refers to the statute on which a charge is based

and references statutory language adequately informs defendant of the charge; minor

deficiencies do not automatically render it constitutionally deficient); United States

v. Brown, 346 F. App’x 481, 488–89 (11th Cir. 2009) (finding that an indictment that

“combined” both prongs of a § 924(c)(1)(A) offense did not render indictment

invalid). There was no error in the indictment.

Next, the jury instructions specified that in order to find Defendant guilty of

Count Six, he must have “used and carried the firearm ‘during and in relation to’ or

possessed the firearm ‘in furtherance of’ the drug-trafficking crime charged in Count

One or Five” (ECF No. 44 at 17). The instructions provided definitions for “use,”

“carry or possess,” “use or carry a firearm in relation to,” and “possessing a firearm

in furtherance of” a crime (ECF No. 44 at 17–18). The verdict form tracked the

instructions. In order to find Defendant guilty of Count Six, the jury had to indicate

whether it found Defendant guilty of “using or carrying a firearm during and in

relation to a drug-trafficking crime, as charged in the indictment” or “possessing a

firearm in furtherance of a drug trafficking crime, as charged in the indictment” (ECF

No. 50 at 3). The jury marked the first of the two choices.5

 In light of the court’s

instructions and the jury’s finding, Defendant’s argument that the indictment rendered

“use” synonymous with “possession” is unfounded. Counsel was not constitutionally

5

 The court notes that the two choices were separated only by a semicolon (rather than “and”

or “or”). 

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ineffective for his failure to raise this meritless argument before the district court, see,

e.g., Denson, supra, and Defendant is not entitled to relief. 

Conclusion

For all of the foregoing reasons, the court finds that Defendant has failed to

show that any of the claims raised in his motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. § 2255 have merit. Nor has he shown that an

evidentiary hearing is warranted. Therefore Defendant’s motion should be denied in

its entirety.

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).” A timely notice of appeal must still be filed, even if the court issues

a certificate of appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the denial

of a constitutional right. § 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 Rule 11(a) provides: “Before 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 may

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

to this report and recommendation.

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Based on the foregoing, it is respectfully RECOMMENDED:

1. The amended motion to vacate, set aside, or correct sentence (ECF No.

154) be DENIED.

2. A certificate of appealability be DENIED.

DONE AND ORDERED this 8th day of January 2016.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed

within fourteen (14) days after being served a copy thereof. Any different

deadline that may appear on the electronic docket is for the court’s internal use

only, and does not control. A copy of objections shall be served upon all other

parties. If a party fails to object to the magistrate judge's findings or

recommendations as to any particular claim or issue contained in a report and

recommendation, that party waives the right to challenge on appeal the district

court's order based on the unobjected-to factual and legal conclusions. See 11th

Cir. Rule 3-1; 28 U.S.C. § 636.

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