Berryhill v. United States
| Decision Date | 23 July 2021 |
| Docket Number | Civil Action 2:18-cv-48,2:16-cr-11 |
| Parties | HOMER BERRYHILL, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Georgia |
ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Movant Homer Berryhill (“Berryhill”), who is currently housed at the Federal Correctional Institution-Low in Yazoo City, Mississippi, filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence, as supplemented. Docs. 1, 6, 8. Berryhill also filed a Motion for Default and a Motion to File Collateral Estoppel. Docs. 7, 11. The Government filed a Response to Berryhill's Motions, to which Berryhill filed a Reply. Docs. 15, 18. Berryhill has also filed a Motion for Leave to Amend and a “Supplement” to his § 2255 Motion. Docs. 21 23. The Government responded to Berryhill's Motion to Amend, doc. 22, and Berryhill filed a Reply, doc. 24.
For the reasons which follow, I RECOMMEND the Court DENY Berryhill's § 2255 Motion, as supplemented, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Berryhill a Certificate of Appealability and in forma pauperis status on appeal. I DENY Berryhill's Motion for Default, Motion to File Collateral Estoppel, and Motion to Amend.
Berryhill was charged and indicted for conspiracy to possess with intent to distribute and distribute a quantity of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; and three counts of use of a communication facility, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. United States v Berryhill, 2:16-cr-11 (“Crim. Case”), Doc 1. Berryhill and his appointed attorney, Marvin Hicks, III, entered into a plea agreement with the Government, and Berryhill pleaded guilty to each count of the use of a communication facility charges. Crim. Case, Doc. 33. In exchange, the Government agreed to: not object to a recommendation for a three-level reduction for acceptance of responsibility; move to dismiss Count 1 of the indictment (the conspiracy charge) against Berryhill; not file a 21 U.S.C. § 851 notice; and consider whether Berryhill's cooperation, if given, qualifies as “substantial assistance” warranting the filing of a motion for downward departure or a motion to reduce sentence. Id. at 2. The Honorable Lisa Godbey Wood held a change of plea, or Rule 11, hearing, during which Kevin Waters with the Drug Enforcement Agency provided the factual basis for the plea, Judge Wood accepted Berryhill's plea, and Judge Wood directed the United States Probation Office to prepare a pre-sentence investigation report (“PSR”). Crim. Case, Docs. 31, 55. Judge Wood sentenced Berryhill to 144 months' imprisonment, which was comprised of three 48-month sentences, to be served consecutively to each other and to be served consecutively to any sentence the Fulton County Superior Court imposed for a probation revocation in its case number 12SC107125. Doc. 54.
Berryhill has now filed his § 2255 Motion, as supplemented, to challenge his sentence. Docs. 1, 6, 8, 18, 23. The Government has responded. Doc. 15. Berryhill has also filed various Motions, docs. 7, 11, 21, to which the Government responded. Docs. 15, 22. The Court addresses the parties' contentions.[1]
Berryhill asserts the Court erred in attributing career offender status to him because he received only probationary sentences for his 2004, 2006, and 2012 sentences for controlled substances offenses and was not sentenced to a term of imprisonment exceeding one year for his 2007 offense. Doc. 1-1 at 12-18. Thus, Berryhill maintains he does not meet the statutory requirements of the career offender provision of the Guidelines because he was not sentenced to serve more than a year in prison on any of these four previous convictions.[2] Id. at 12-13. Berryhill asserts his “simple possession” prior convictions under Georgia law are not “controlled substance offense[s]” that could be used to enhance his federal sentence. Id. at 17.
The Government states the Court properly counted Berryhill's state convictions as career offender predicate offenses.[3] Doc. 15 at 23. Specifically, the Government states Berryhill's 2007 and 2012 convictions for possession with intent to distribute methamphetamine are controlled substance offenses under the career offender provision of the Guidelines, and the Court was permitted to use these two convictions to designate Berryhill as a career offender. Id. at 23-24.
Section 4B1.1 of the Sentencing Guidelines deems a defendant to be a career offender if he was at least eighteen years old at the time he committed the offense for which he is being sentenced, the offense “is a felony that is either a crime of violence or a controlled substance offense, ” and 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). “The term ‘controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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.” U.S.S.G. § 4B1.2(b). “[F]acts contained in a” PSR are deemed United States v. Kicklighter, 346 Fed.Appx. 516, 519 (11th Cir. 2009) (citations omitted).
The career offender provision of the Guidelines was applied to Berryhill based on his 2007 and 2012 convictions in the Fulton County Superior Court for possession of methamphetamine with intent to distribute. PSR, ¶¶ 28, 38, 40. Both of Berryhill's convictions under Georgia law involved possession of methamphetamine with intent to distribute. Id. at ¶¶ 38, 40; Docs. 15-3, 15-4. The convictions are qualifying “controlled substance offenses” under § 4B1.1 because they were state law crimes, punishable by at least five years' imprisonment, for possession with intent to distribute methamphetamine, a controlled substance. McKenzie v. United States, CV 616-086, CR 615-001, 2017 WL 930146, at *5 n.6 (S.D. Ga. Jan. 11, 2017) (citing O.C.G.A. § 16-13-30).[4] It is immaterial Berryhill was not sentenced to serve more than a year and a day in prison for these convictions. He faced a term of imprisonment of more than a year on his previous state court convictions, as the crimes of which he was convicted were punishable as felony offenses. Further, the PSR states Berryhill was in possession of approximately 24 grams of methamphetamine on his 2007 conviction, and this term of probation was revoked; Berryhill was ordered to serve two years' confinement. PSR, ¶ 38. Records for Berryhill's 2012 conviction were not available, according to the probation officer. Id. at ¶ 40. Nevertheless, Berryhill clearly qualifies as a career offender under the Guidelines based on his 2007 and 2012 Georgia convictions. These two convictions were for felony offenses and, under the career offender provision, a defendant need only have two previous qualifying controlled substance convictions.[5] In addition, because this designation was not objected to at sentencing, Judge Wood was entitled to rely on the statements contained in the PSR in determining Berryhill's sentence.[6] For these reasons, the Court should DENY this portion of Berryhill's § 2255 Motion.
Berryhill avers the Court did not employ any factual findings or use any documents to determine he qualifies as a career offender. Instead, Berryhill contends, the Court relied solely on information contained in the PSR to determine he qualified as a career offender. Doc. 1-1 at 19.
In response, the Government asserts the Court could rely solely on the information contained in the PSR relating to prior offenses for Berryhill's career offender designation because he did not challenge the information relating to his previous convictions. Doc. 15 at 24. The Government also asserts Berryhill admitted he was convicted of possession with intent to distribute methamphetamine in Georgia in 2007 and was sentenced to 10 years to serve, with six months in custody and the balance on probation, and under the same statute in 2012, at which time he was sentenced to 15 years, to be served on probation. Id. Accordingly, these convictions are valid predicates for the career offender enhancement. Id.
The Court was permitted to use Berryhill's 2007 and 2012 convictions under the career offender provision, especially in light of his failure to object to the probation officer's description of both convictions as possession with intent to distribute in the PSR. Turner v. Warden Coleman FCI (Med.), 709 F.3d 1328, 1336 (11th Cir. 2013), abrogation on other grounds recognized by United States v. Hill, 799 F.3d 1318, 1321 n.1 (11th Cir. 2015). In addition, the Court was not required to make any factual findings to determine Berryhill qualified as a career offender for purposes of § 4B1.1. See United States v. Gibson, 434 F.3d 1234, 1247 (11th Cir. 2006) (...
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