Kevin Norris Guyton v. United States ( 2011 )


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  •                                                                [DO NOT PUBLISH]
    
                   IN THE UNITED STATES COURT OF APPEALS
    
                            FOR THE ELEVENTH CIRCUIT
                             ________________________                     FILED
                                                                 U.S. COURT OF APPEALS
                                    No. 10-12056                   ELEVENTH CIRCUIT
                                Non-Argument Calendar              NOVEMBER 22, 2011
                              ________________________                  JOHN LEY
                                                                         CLERK
                        D.C. Docket Nos. 9:08-cv-80816-DTKH,
                               9:05-cr-80135-DTKH-2
    
    KEVIN NORRIS GUYTON,
    
                                                   lllllllllllllllllllllPetitioner-Appellant,
    
                                          versus
    
    UNITED STATES OF AMERICA,
    
                                              lllllllllllllllllllllRespondent-Appellee.
                              ________________________
    
                       Appeal from the United States District Court
                           for the Southern District of Florida
                             ________________________
    
                                  (November 22, 2011)
    
    Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
    
    PER CURIAM:
    
          Kevin Guyton, a federal prisoner, appeals the denial of his pro se 28 U.S.C.
    
    § 2255 motion to vacate attacking his 262-month sentence of imprisonment.
    Guyton contends that he received ineffective assistance of counsel at his sentence
    
    hearing because his counsel failed to clearly articulate the objection to the use of a
    
    prior conviction for extortion under Florida statute as a predicate “crime of
    
    violence” for the career offender enhancement under U.S.S.G. §§ 4B1.1 and
    
    4B1.2(a)(2). Guyton also contends that his Fifth Amendment due process rights
    
    were violated because his sentence was enhanced based on a non-existent
    
    offense—being a “career offender” based on only one prior conviction instead of
    
    two. See U.S.S.G. § 4B1.1(a).
    
                                              I.
    
          In 2005 a grand jury indicted Guyton for one count of possession with intent
    
    to distribute powder cocaine in violation of 21 U.S.C. § 841(a)(1). Before trial, the
    
    government served Guyton with an 21 U.S.C. § 851 notice of the government’s
    
    intent to use one prior felony drug offense to increase Guyton’s statutory
    
    maximum under 21 U.S.C. § 841(b)(1) from 20 years to 30 years. In 2006, after a
    
    jury trial, Guyton was convicted of possession with intent to distribute powder
    
    cocaine. The presentence report listed Guyton’s statutory maximum at 30 years,
    
    which Guyton does not dispute.
    
          The PSR also recommended that Guyton be sentenced as a career offender
    
    under U.S.S.G. § 4B1.1 based two prior predicate felonies, one prior “controlled
    
    
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    substance offense” and one “crime of violence.” The “crime of violence,” which is
    
    the only predicate offense at issue in this appeal, was a 1996 conviction for
    
    extortion under Florida Statute § 836.05. Guyton’s recommended guidelines range
    
    for his conviction with the career offender enhancement was 262 to 327 months.
    
    Without the enhancement, Guyton’s recommended guidelines range would have
    
    been 27 to 33 months.
    
          At the sentence hearing Guyton’s counsel objected to the use of the 1996
    
    extortion conviction as a predicate for the career offender enhancement, but he did
    
    not specifically raise an argument that the Florida extortion statute under which
    
    Guyton had been convicted did not fit the generic definition of extortion. After
    
    hearing arguments from both sides, the district court concluded that the career
    
    offender enhancement applied, set the advisory guidelines range at 262 to 327
    
    months, and sentenced Guyton at the bottom end of his guidelines range—262
    
    months imprisonment.
    
          Guyton appealed his conviction and sentence to this Court. United States v.
    
    Guyton, 256 Fed. App’x 276 (11th Cir. Nov. 27, 2007). The only argument raised
    
    in his direct appeal relevant to his sentence was that the district court erred by
    
    failing to submit the issue of the prior convictions used in applying the career
    
    offender enhancement to the jury. Id. at 278–79. We rejected that argument and
    
    
                                               3
    affirmed his conviction and sentence. Id.
    
          In 2008 Guyton filed pro se a § 2255 motion to vacate his sentence, which
    
    the district court denied. Guyton then filed pro se an application for certificate of
    
    appealability, which the district court liberally construed to include requests for
    
    issuance of a certificate on two questions. The district court granted Guyton a
    
    certificate of appealability on both questions:
    
          (1)    Whether petitioner received ineffective assistance of counsel
                 based on sentencing counsel’s failure to object to the use of the
                 prior Florida extortion conviction as a predicate of the career
                 offender enhancement.
    
          (2)    Whether petitioner’s due process rights under the Fifth
                 Amendment were violated by imposition of an enhanced sentence
                 based on a non-existent offense - being a “career offender” based
                 on one prior drug conviction. See, e.g., Gilbert v. United States,
                 
    609 F.3d 1159
     (11th Cir.), opinion vacated on rehearing en banc,
                 
    625 F.3d 716
     (11th Cir. 2010).
    
    We deal with each in turn.
    
                                             II.
    
          In reviewing a district court’s dismissal of a § 2255 motion, legal
    
    conclusions are reviewed de novo and factual findings only for clear error. Rhode
    
    v. United States, 
    583 F.3d 1289
    , 1290 (11th Cir. 2009). An ineffective assistance
    
    of counsel claim presents a mixed question of law and fact, which we review de
    
    novo. Payne v. United States, 
    566 F.3d 1276
    , 1277 (11th Cir. 2009). Guyton
    
    
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    contends that he received ineffective assistance of counsel at his sentence hearing
    
    because his counsel “failed to frame his objection to use of the [Florida] extortion
    
    prior conviction in legal terms the court could understand.” He argues that because
    
    of this failure his counsel’s performance “fell below a reasonably objective
    
    standard.”
    
          To prevail on an ineffective-assistance claim, a petitioner must show both
    
    that his counsel’s performance was deficient, and that this deficient performance
    
    prejudiced him. Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    ,
    
    2064 (1984). To establish deficient performance, a petitioner must show that
    
    counsel acted unreasonably in light of prevailing professional norms. Id. at 688,
    
    104 S.Ct. at 2065. In other words, “a petitioner must establish that no competent
    
    counsel would have taken the action that his counsel did take.” Chandler v. United
    
    States, 
    218 F.3d 1305
    , 1315–16 (11th Cir. 2000) (en banc).
    
          There is a “strong presumption that counsel’s conduct falls within the wide
    
    range of reasonable professional assistance,” and a reviewing court must make
    
    every effort “to eliminate the distorting effects of hindsight.” Strickland, 466 U.S.
    
    at 689, 104 S.Ct. at 2065. Additionally, “as an acknowledgment that law is no
    
    exact science, the rule that an attorney is not liable for an error of judgment on an
    
    unsettled proposition of law is universally recognized.” Smith v. Singletary, 170
    
    
                                               
    5 F.3d 1051
    , 1054 (11th Cir. 1999); see also Jones v. United States, 
    224 F.3d 1251
    ,
    
    1258 (11th Cir. 2000) (“[W]e are not prepared to say categorically that counsel’s
    
    failure to [preserve an argument] constituted prejudicial, ineffective nonfeasance
    
    while the law was still unsettled.”). We need not address the prejudice prong if the
    
    defendant has not established deficient performance. Strickland, 466 U.S. at 697,
    
    104 S.Ct. at 2069.
    
           Under the career offender guideline a defendant is sentenced as a career
    
    offender if, among other requirements, he has at least two prior felony convictions
    
    of either a “crime of violence” or a “controlled substance offense.” U.S.S.G. §
    
    4B1.1(a). A “crime of violence” is defined in relevant part as: “any offense under
    
    federal or state law . . . that . . . is burglary of a dwelling, arson, or extortion,
    
    involves use of explosives, or otherwise involves conduct that presents a serious
    
    potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (emphasis
    
    added). When considering the enumerated offenses under § 4B1.2(a)(2), the
    
    district court must consider determine whether the state statute of conviction falls
    
    within the generic definition of the offense independent of the labels used by
    
    various states’ criminal codes. See Taylor v. United States, 
    495 U.S. 575
    , 592, 
    110 S. Ct. 2143
    , 2155 (1990).
    
           At the time of Guyton’s sentence hearing in 2006, the Supreme Court had
    
    
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    generically defined extortion in contexts other than U.S.S.G. § 4B1.2(a)(2) as
    
    “obtaining something of value from another with his consent induced by the
    
    wrongful use of force, fear, or threats.” Scheider v. Nat’l Org. for Women, Inc.,
    
    
    537 U.S. 393
    , 409–10, 
    123 S. Ct. 1057
    , 1068–69 (2003) (defining generic extortion
    
    for purposes of state law predicate offenses under RICO, 18 U.S.C. § 1961(1));
    
    United States v. Nardello, 
    393 U.S. 286
    , 289–90, 
    89 S. Ct. 534
    , 536, (1969)
    
    (defining extortion for purposes of offenses under the Travel Act, 18 U.S.C. §
    
    1952). The Florida extortion statute under which Guyton was convicted in 1996
    
    provided that:
    
          Whoever, either verbally or by a written or printed communication,
          maliciously threatens to accuse another of any crime or offense, or by
          such communication maliciously threatens an injury to the person,
          property or reputation of another, or maliciously threatens to expose
          another to disgrace, or to expose any secret affecting another, or to
          impute any deformity or lack of chastity to another, with intent thereby
          to extort money or any pecuniary advantage whatsoever, or with intent
          to compel the person so threatened, or any other person, to do any act or
          refrain from doing any act against his will, shall be guilty of a felony of
          the second degree.
    
    Fla. Stat. § 836.05 (1995) (emphasis added). Neither the Supreme Court nor this
    
    Court have previously addressed whether the Florida extortion statute under which
    
    Guyton was convicted satisfies the generic definition of extortion applicable under
    
    § 4B1.2(a)(2). In fact, neither court has ever defined “extortion” in the specific
    
    context of U.S.S.G. § 4B1.2(a)(2).
    
                                              7
          Because the question of whether the Florida extortion statute was non-
    
    generic was unsettled at the time of Guyton’s sentence hearing, his ineffective
    
    assistance of counsel claim fails. See Smith, 170 F.3d at 1054. He has not pointed
    
    to any authoritative decisional law that sets forth a generic definition of extortion
    
    under U.S.S.G. § 4B1.2(a)(2) or that construes the Florida extortion statute as
    
    non-generic. Additionally, without reaching the issue, it appears the Florida
    
    extortion statute, which makes it a crime to “maliciously threaten[]” another person
    
    with both physical and nonphysical harm, may well fall within the generic
    
    definition the Supreme Court has given to extortion in other contexts—“obtaining
    
    something of value from another with his consent induced by the wrongful use of
    
    force, fear, or threats.” See Scheider, 537 U.S. at 409, 123 S.Ct. at 1068 (emphasis
    
    added).
    
          For these reasons, Guyton has not shown that his counsel’s failure to argue
    
    at his sentence hearing that the Florida extortion statute did not fit within the
    
    generic definition of extortion under § 4B1.2(a)(2) fell outside of “the wide range
    
    of reasonable professional assistance.” See Strickland, 466 U.S. at 689, 104 S.Ct.
    
    at 2065. Accordingly, Guyton has not met his burden to establish ineffective
    
    assistance of counsel.
    
                                              III.
    
    
                                               8
          Guyton also contends that his Fifth Amendment due process rights were
    
    violated because his sentence was enhanced based on a non-existent “crime of
    
    violence”—being a “career offender” based on only one prior controlled substance
    
    offense. See U.S.S.G. § 4B1.1(a). His Fifth Amendment claim fails, however,
    
    because he is procedurally barred from raising it in a 28 U.S.C. § 2255 motion to
    
    vacate.
    
          In general, a criminal defendant who fails to object at trial or to raise an
    
    issue on direct appeal is procedurally barred from raising the claim in a § 2255
    
    motion, absent a showing of cause and prejudice or a showing of actual innocence.
    
    See Lynn v. United States, 
    365 F.3d 1225
    , 1234 (11th Cir. 2004) (“A defendant
    
    can avoid a procedural bar only by establishing [either] . . . cause for not raising
    
    the claim of error on direct appeal and actual prejudice from the alleged error . . .
    
    [or] despite his failure to show cause for procedural default [that] a constitutional
    
    violation has probably resulted in the conviction of one who is actually innocent. ”
    
    (quotation marks and citations omitted)). Attorney errors that fall short of
    
    constitutionally ineffective assistance do not constitute cause to excuse procedural
    
    default. See Coleman v. Thompson, 
    501 U.S. 722
    , 752, 
    111 S. Ct. 2546
    , 2566
    
    (1991) (“So long as a defendant is represented by counsel whose performance is
    
    not constitutionally ineffective under the standard established in Strickland . . . , we
    
    
                                               9
    discern no inequity in requiring him to bear the risk of attorney error that results in
    
    a procedural default.”).
    
          Guyton did not object to his career offender enhancement on due process
    
    grounds at his sentence hearing and did not raise the issue on direct appeal of his
    
    sentence. He has therefore procedurally defaulted on his due process claim unless
    
    he can show an exception applies. The only “cause” he points to for excusing his
    
    procedural default is the alleged ineffective assistance he received when his
    
    counsel failed to argue at his sentence hearing that the Florida extortion statute was
    
    non-generic, which, as discussed above, was not actually ineffective assistance.
    
    Because Guyton has failed to establish ineffective assistance, any purported errors
    
    made by his counsel do not constitute cause to excuse his procedural default.
    
    Coleman, 501 U.S. at 752–53, 111 S.Ct. at 2566 (“This error cannot be
    
    constitutionally ineffective; therefore [the defendant] must ‘bear the risk of
    
    attorney error that results in a procedural default.’”).
    
          Guyton’s only remaining hope of overcoming his default lies in his
    
    argument that he was “actually innocent” of his career offender enhancement. See
    
    Lynn, 365 F.3d at 1234. That argument fails, however, because a defendant cannot
    
    be “convicted of being guilty of the [career offender] enhancement.” Gilbert v.
    
    United States, 
    640 F.3d 1293
    , 1320 (11th Cir. 2011) (en banc) (“If guidelines
    
    
                                               10
    enhancements were crimes, they would have to be charged in the indictment and
    
    proven to the jury beyond a reasonable doubt.”). Accordingly, Guyton is
    
    procedurally barred from raising his due process claim in a § 2255 motion to
    
    vacate sentence.
    
          AFFIRMED.
    
    
    
    
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