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Cases No. 4:10cr63-RH/GRJ and 4:12cv132-RH/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASES NO. 4:10cr63-RH/GRJ

 4:12cv132-RH/GRJ

NICHOLAS MCCRAY,

Defendant.

_________________________________/

ORDER DENYING THE § 2255 MOTION

The defendant Nicholas McCray has moved under 28 U.S.C. § 2255 for 

relief from his sentence. He asserts he was improperly treated as a career offender 

under United States Sentencing Guidelines Manual § 4B1.1. 

The motion is before the court on the magistrate judge’s report and 

recommendation, ECF No. 56. No objections have been filed. 

The report and recommendation correctly concludes that the § 2255 motion 

is untimely and must be denied on that basis. Even if timely, the motion would 

properly be denied on two additional grounds.

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First, an assertion that a sentencing court improperly calculated the guideline 

range must be presented on direct appeal and cannot be raised by a § 2255 motion. 

Spencer v. United States, No. 10-10676 *14-15 (11th Cir. November 14, 2014).

Second, the record shows that the court properly calculated the guideline 

range, at least under the law of the circuit as still in effect. A defendant is a career 

offender under § 4B1.1 if (a) the defendant was at least 18 years old at the time of 

the offense of conviction, (b) the offense of conviction is a felony that is either a 

crime of violence or a controlled-substance offense, and (c) the defendant has at 

least two prior felony convictions for a crime of violence or controlled-substance 

offense. 

A controlled-substance offense, within the meaning of this guideline, is a 

felony conviction under a statute that “prohibits the manufacture, import, export, 

distribution, or dispensing of a controlled substance (or a counterfeit substance) or 

the possession of a controlled substance (or a counterfeit substance) with intent to 

manufacture, import, export, distribute, or dispense.” United States Sentencing 

Guidelines Manual § 4B1.2(b) (2009). 

Mr. McCray’s offense of conviction in this case is possessing cocaine with 

intent to distribute. This is plainly a “controlled substance offense.” And Mr. 

McCray was over 18 at the time of the offense. The only issue, then, is whether 

Mr. McCray had the required prior convictions.

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Mr. McCray had prior felony convictions in Florida state court for sale of 

cocaine within 1,000 feet of a church (presentence report ¶ 32) and attempting to 

traffic in cocaine (presentence report ¶ 33). Sale of cocaine is plainly a controlledsubstance offense; any contrary assertion would be frivolous. 

Under the law of the circuit, attempting to traffic in cocaine also is a 

controlled-substance offense. First, an attempt is sufficient; a completed offense is 

not required. See, e.g., United States v. Smith, 54 F.3d 690, 692 (11th Cir. 1995). 

Second, even though trafficking under Florida Statutes § 893.135 requires only 

possession of a sufficient quantity of a drug and does not require an intent to 

distribute, the Eleventh Circuit has explicitly held that such a conviction meets the 

definition of a “controlled substance offense” under Guidelines § 4B1.2. United 

States v. James, 430 F.3d 1150, 1154-56 (11th Cir. 2005).

In sum, for three reasons, each of which would be sufficient standing alone, 

Mr. McCray’s § 2255 motion must be denied. The motion is untimely, raises a 

claim available only on direct appeal, and is unfounded on the merits.

A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Miller-El v. 

Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

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Cases No. 4:10cr63-RH/GRJ and 4:12cv132-RH/GRJ

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a 

§ 2254 petition on the merits). As the Court said in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the 

issues presented were “adequate to deserve encouragement to proceed 

further.” 

Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in 

order to obtain a certificate of appealability when dismissal is based on procedural 

grounds, a petitioner must show, “at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack, 529 U.S. at 484. 

Mr. McCray has not made the required showing. This order thus denies a 

certificate of appealability. (Jurists of reason could disagree on whether trafficking 

under Florida law is a controlled-substance offense. But James settled the issue in 

the Eleventh Circuit. If a different result on this issue would entitle Mr. McCray to 

relief, I would grant a certificate of appealability so that he could challenge James

before the Eleventh Circuit en banc or in the United States Supreme Court. But as 

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set out above, Mr. McCray’s § 2255 motion is plainly unfounded in other respects, 

so a certificate of appealability cannot properly be issued.) 

For these reasons,

IT IS ORDERED:

1. The clerk must enter a judgment stating, “The defendant’s motion for 

relief under 28 U.S.C. § 2255 is DENIED.”

2. A certificate of appealability is DENIED.

SO ORDERED on November 17, 2014.

s/Robert L. Hinkle

United States District Judge

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