IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CIVIL ACTION 07-0241-WS

 )

REGINALD CARTER, ) CRIMINAL NO. 05-0263-WS

 )

Defendant. )

ORDER

This matter is before the Court on petitioner Reginald Carter’s pro se Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (doc.

74). Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United

States District Courts, the undersigned has conducted an initial review of the Petition. Because it

plainly appears from such examination that Carter is not entitled to relief, the Court enters the

following Order at this time, without directing a formal response by the Government. 

On October 27, 2005, a grand jury sitting in the Southern District of Alabama handed

down a two-count Superseding Indictment (doc. 21) charging Carter and a co-defendant with

conspiracy to possess with intent to distribute approximately one kilogram of cocaine, in

violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, as well as possession with intent to distribute

approximately one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. 

The Superseding Indictment charged that the quantity involved exceeded 500 grams of a mixture

and substance containing a detectable amount of cocaine, thereby exposing defendants to the

penalty provisions of 21 U.S.C. § 841(b)(1)(B).

On November 14, 2005, Carter entered a plea of guilty with respect to the conspiracy

count, pursuant to a written plea agreement with the Government. A sentencing hearing was

conducted on March 31, 2006, at which time the undersigned sentenced Carter to a high-end

Guidelines sentence consisting of a term of imprisonment of 151 months, to be followed by a

four-year term of supervised release. At the hearing, the Court expressly noted that the range of

penalties produced by the Sentencing Guidelines calculations was advisory, rather than

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mandatory. (Doc. 68, at 58.) Ten days later, Carter’s court-appointed attorney timely filed a

Notice of Appeal (doc. 63) of petitioner’s conviction and sentence to the United States Court of

Appeals for the Eleventh Circuit. On September 13, 2006, the Eleventh Circuit dismissed

Carter’s appeal pursuant to the appeal waiver included in his plea agreement. (Doc. 72.) The

instant petition for postconviction relief followed.

In his § 2255 petition, Carter identifies two grounds for relief, both of which are facially

devoid of merit. First, he asserts, “counsel was constitutionally ineffective for failing to file a

‘notice of appeal’ or a ‘direct appeal’.” (Petition, at 4.) Elaborating on this claim, Carter

contends that he instructed counsel to file a direct appeal on his behalf but that “counsel choose

to deceive the defendant by telling him that he had waived his right to appeal his sentence, and

did not file his appeal, as requested.” (Id.) This ground for relief is counterfactual. The court

file unequivocally reflects that Carter’s attorney did file a Notice of Appeal on his behalf and did

pursue a direct appeal of his conviction and sentence at the Eleventh Circuit, which ultimately

dismissed the appeal because Carter was deemed to have waived the issues from which appeal

was taken via the appeal waiver in his plea agreement. Petitioner’s counsel obviously did file

and pursue a direct appeal on his behalf; therefore, Carter’s assertion in his § 2255 petition that

counsel disregarded his explicit request to file a notice of appeal is clearly inaccurate.

As his second ground for relief under § 2255, Carter maintains that this Court committed

clear error at sentencing by “impermissibly enhanc[ing] the defendant’s sentence above the

guideline maximum, based on judge found facts not admitted to by the defendant, nor was the

enhancing facts proven by the government beyond a reasonable doubt nor found beyond a

reasonable doubt by the district court.” (Petition, at 4.) The law is clear that, in the post-Booker

world, a sentencing court “may still make findings of fact (so long as the judicial factfinding

does not increase the defendant's sentence beyond the statutory maximum triggered by the facts

conceded or found by a jury beyond a reasonable doubt).” United States v. Hunt, 459 F.3d 1180,

1182 (11th Cir. 2006); see also United States v. Smith, --- F.3d ----, 2007 WL 803193, *3 (11th

Cir. Mar. 19, 2007) (“When the district court applies the Guidelines in an advisory manner,

nothing in Booker prohibits district courts from making, under a preponderance-of-the-evidence

standard, additional factual findings that go beyond a defendant’s admissions.”); United States v.

Chau, 426 F.3d 1318, 1324 (11th Cir. 2005) (explaining that, post-Booker, a district court may

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properly find facts at sentencing by a preponderance of the evidence, even if such facts go

beyond the letter of those which the defendant admitted by pleaded guilty, so long as the

Sentencing Guidelines are applied in an advisory way). Petitioner was sentenced well below the

applicable statutory maximum triggered by the facts he admitted in his guilty plea and the

undersigned explicitly applied the Sentencing Guidelines as advisory pursuant to Booker;

therefore, his contention that this Court erred in enhancing his sentence based on facts to which

Carter did not admit and which the Government did not prove beyond a reasonable doubt must

fail, as a matter of law.

Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United

States District Courts, this Court is obliged to conduct a preliminary review of every § 2255

petition that is filed. “If it plainly appears from the motion, any attached exhibits, and the record

of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the

motion and direct the clerk to notify the moving party.” Rule 4(b). That is precisely the case

here. Accordingly, Carter’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence by a Person in Federal Custody (doc. 74) is hereby dismissed with prejudice. A

separate judgment will enter.

DONE and ORDERED this 10th day of April, 2007.

s/ WILLIAM H. STEELE 

UNITED STATES DISTRICT JUDGE

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