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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LESLIE FRANCE, :

 Petitioner, : 

 CIVIL ACTION 16-00301-CG-M

v. :

 CRIMINAL ACTION 09-00077-CG-M

UNITED STATES OF AMERICA, :

 Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate, 

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 

102). This action was referred to the undersigned Magistrate 

Judge for report and recommendation pursuant to 28 U.S.C. § 

636(b) and Rule 8(b) of the Rules Governing Section 2255 Cases. 

It is now ready for consideration. The record is adequate to 

dispose of this matter; no evidentiary hearing is required. It 

is recommended that Petitioner’s Motion to Vacate (Doc. 102) be 

denied, that this action be dismissed, and that judgment be 

entered in favor of Respondent, the United States of America, 

and against Petitioner Leslie France. It is further recommended 

that any certificate of appealability filed by Petitioner be 

denied as he is not entitled to appeal in forma pauperis. 

France was indicted on March 26, 2009 for two counts of 

conspiring to distribute crack cocaine (Counts 1, 6) in 

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violation of 21 U.S.C. § 846, two counts of distributing crack 

cocaine (Counts 2, 10) in violation of 21 U.S.C. § 841(a)(1), 

one count of possessing a firearm while drug trafficking (Count 

4) in violation of 18 U.S.C. § 924(c), and three counts of

distributing marijuana (Counts 7, 9, 11) in violation of 21 

U.S.C. § 841(a)(1) (Doc. 1). On June 10, 2009, Petitioner

entered into a Plea Agreement (Doc. 23); eight days later, in 

open Court, he pled guilty to Counts 1, 4, and 10 (Doc. 31). On 

June 11, 2010, U.S. District Court Judge Granade sentenced 

France to 300 months, each, on Counts 1 and 10, to be served 

concurrently, and 60 months on Court 4, to be served 

consecutively to the 300-month sentence; additionally, 

Petitioner was sentenced to eight, five, and ten years (on 

Counts 1, 4, and 10, respectively) of supervised release, all to 

be served concurrently, following his release from prison, and 

an assessment of three hundred dollars (see Doc. 76). France 

did not appeal his conviction (see Doc. 102, p. 2). 

Petitioner filed his Motion to Vacate on June 15, 2016 in 

which he raises the single claim that he should be resentenced,

under a United States Supreme Court decision, Johnson v. United 

States, 576 U.S. ---, 135 S.Ct. 2551, 2557-58, 2563 (2015), on 

the conviction for felon in possession of a firearm (Doc. 102). 

Respondent filed a response on July 25, 2016 (Doc. 104) to which 

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France replied (Doc. 106).

Petitioner has argued that he was improperly sentenced as a 

career offender under 18 U.S.C. § 924(c) as found recently in 

Johnson. The Eleventh Circuit Court of Appeals, in In re Hines, 

--- F.3d ---, 2016 WL 3189822 (11th Cir. June 8, 2016), 

characterized the Johnson decision as follows:

In Johnson, the Supreme Court held that 

the residual clause of the [Armed Career 

Criminal Act (hereinafter ACCA)] is 

unconstitutionally vague because it creates 

uncertainty about how to evaluate the risks 

posed by a crime and how much risk it takes 

to qualify as a violent felony. Johnson, 

576 U.S. at ---, ---, 135 S.Ct. 2551, at 

2557-58, 2563. The Supreme Court made clear 

that its holding that the residual clause is 

void did not call into question the validity 

of the elements clause and the enumerated 

crimes of the ACCA’s definition of a violent 

felony. Id. at ---, 135 S.Ct. at 2563. In 

Welch v. United States, 578 U.S. ---, 136 

S.Ct. 1257, 194 L.Ed.2d 387 (2016), the 

Supreme Court held that Johnson announced a 

new substantive rule of constitutional law 

that applies retroactively to cases on 

collateral review.

In re Hines, 2016 WL 3189822, *1.

In this action, France’s Presentence Investigation Report 

(hereinafter PSR) indicated that the federal charge against him 

was “a felony crime of violence or controlled substance offense; 

and the defendant has at least two prior felony convictions for 

crimes of violence and/or controlled substance offenses as 

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detailed in ‘PART B,’” making Petitioner a career offender (Doc. 

56, ¶ 29). Part B of the PSR demonstrates that France was 

convicted of multiple controlled substance offenses prior to his 

being sentenced on the charges in this Court (Doc. 56, ¶¶ 36, 

37, 38, 40). Two convictions, both for first-degree possession 

of marijuana, specifically reference France’s possessing amounts 

of marijuana “for other than personal use” (see id. at ¶¶ 36-

37). 

The relevant portion of the statute under which Petitioner 

was sentenced states as follows:

Except to the extent that a greater 

minimum sentence is otherwise provided by 

this subsection or by any other provision of 

law, any person who, during and in relation 

to any crime of violence or drug trafficking 

crime (including a crime of violence or drug 

trafficking crime that provides for an 

enhanced punishment if committed by the use 

of a deadly or dangerous weapon or device) 

for which the person may be prosecuted in a 

court of the United States, uses or carries 

a firearm, or who, in furtherance of any 

such crime, possesses a firearm, shall, in 

addition to the punishment provided for such 

crime of violence or drug trafficking crime 

be sentenced to a term of imprisonment of 

not less than 5 years.

18 U.S.C. § 924(c)(1)(A)(i). The Eleventh Circuit Court of 

Appeals has held that Alabama convictions for first-degree 

marijuana possession qualified as a predicate offense for career 

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offender enhancement purposes. United States v. Goodlow, 389 

F.App’x 961, 968 (11th Cir. 2010).

The undersigned finds that the evidence shows that France 

was sentenced as a career offender because of his drug 

trafficking crimes and not because of prior crimes of violence. 

As such, Johnson is inapplicable here. Petitioner’s claim 

otherwise is without merit.

Therefore, it is recommended that the petition be denied, 

that this action be dismissed, and that judgment be entered in 

favor of Respondent, the United States of America, and against 

Petitioner Leslie France.

Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2255 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) be denied. 28 U.S.C. foll. § 

2255, Rule 11(a) (“The district court must issue or deny a 

certificate of appealability when it enters a final order 

adverse to the applicant”). The habeas corpus statute makes 

clear that an applicant is entitled to appeal a district court’s 

denial of his petition only where a circuit justice or judge 

issues a COA. 28 U.S.C. § 2253(c)(1). A COA may issue only 

where “the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

When the merits of a claim are reached, a COA should issue only 

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when the petitioner demonstrates "that reasonable jurists would 

find the district court's assessment of the constitutional 

claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 

484 (2000). As the Court has found that France failed to assert 

sufficient facts to support a claim of constitutional error, 

“[t]he petitioner must demonstrate that reasonable jurists would 

find the district court's assessment of the constitutional 

claims debatable or wrong.” Slack, 529 U.S. at 484. It is 

suggested that Petitioner will not be able to make that showing.

CONCLUSION

It is recommended that Petitioner’s Motion to Vacate be 

denied (Doc. 102) and that this action be dismissed. It is 

further recommended that judgment be entered in favor of 

Respondent, the United States of America, and against Leslie 

France. Finally, it is further recommended that any certificate 

of appealability filed by Petitioner be denied as he is not 

entitled to appeal in forma pauperis. 

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who 

objects to this recommendation or anything in it must, within 

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fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. 

In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 31st day of August, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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