Brown v. Warden, FCC Coleman–Low

• Decision Date: 01 April 2016
• Docket Number: No. 15–11335.,15–11335.
• Citation: 817 F.3d 1278
• Parties: Robert Griffin BROWN, Petitioner–Appellant, v. WARDEN, FCC COLEMAN–LOW, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

817 F.3d 1278

Robert Griffin BROWN, Petitioner–Appellant,

v.WARDEN, FCC COLEMAN–LOW, Respondent–Appellee.

No. 15–11335.

United States Court of Appeals, Eleventh Circuit.

April 1, 2016.

Rosemary Cakmis, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL, for Petitioner–Appellant.

Roberta Josephina Bodnar, U.S. Attorney's Office, Orlando, FL, Yvette Rhodes, Arthur Lee Bentley, III, Amanda C. Kaiser, U.S. Attorney's Office, Tampa, FL, for Respondent–Appellee.

Before HULL, JULIE CARNES, and BARKSDALE,^* Circuit Judges.

HULL, Circuit Judge:

Petitioner Robert Griffin Brown appeals the district court's dismissal of his 28 U.S.C. § 2241 petition, which he brought pursuant to the 28 U.S.C. § 2255(e) savings clause. Brown's appeal raises a novel issue requiring us to interpret the fourth prong of the jurisdictional test announced in Bryant v. Warden, FCC Coleman–Medium , 738 F.3d 1253, 1274 (11th Cir.2013), which requires a petitioner to establish that his current detention exceeds the statutory maximum authorized by Congress.

Petitioner Brown is serving 3 concurrent 188–month sentences on each of his 3 counts of conviction: 2 drug-distribution offenses and a felon-in-possession-of-a-firearm offense. He challenges his sentence for the felon-in-possession offense. Because the drug convictions authorize his 188–month sentence, the government argues his overall detention is not illegal.

We agree and hold that, in order to meet Bryant 's fourth prong, a § 2241 petitioner serving multiple concurrent sentences must demonstrate that his overall sentence exceeds the allowable statutory maximum for each of the counts of conviction.

In other words, the petitioner must show that, as a result of sentencing error, he will be in prison-custody or detention for longer than any of his statutes of conviction authorize.

Here, Petitioner Brown cannot "open a portal" to the § 2255(e) savings clause because his 188–month sentence on his firearm offense, even if now illegal, is equivalent to and wholly concurrent with his 188–month drug sentences that are not illegal.

I. BACKGROUND

In July 2003, Robert Griffin Brown was indicted for: (1) possessing 50 grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) ; (2) possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ; (3) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) ; and (4) carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Brown pled guilty to all four offenses.

Brown's presentence investigation report ("PSI") set out the statutory sentencing ranges for each count of conviction. It determined that Brown was subject to: (1) 10 years' to life imprisonment for the cocaine-base-possession offense; (2) 0 to 20 years' imprisonment for the cocaine-possession offense; (3) 15 years' to life imprisonment for the firearm-possession offense; and (4) a mandatory consecutive sentence of 5 years' to life imprisonment for the § 924(c) offense.

According to the PSI, Brown was subject to an enhanced statutory sentence on the firearm conviction in Count 3, in accordance with the provisions of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The PSI determined that Brown had the following three ACCA-predicate convictions for serious drug offenses or violent felonies: (1) a 1982 Florida conviction for sale and possession of cocaine; (2) another 1982 Florida conviction for sale and possession of cocaine; and (3) a 1988 Florida conviction for carrying a concealed firearm.¹ Brown committed his two 1982 cocaine offenses on separate dates.

The PSI grouped Counts 1, 2, and 3 together and, because Brown was an armed career criminal under the ACCA, applied the armed career criminal sentencing guidelines enhancement under U.S.S.G. § 4B1.4. Ultimately, Brown's guidelines range for those counts was 188 to 235 months' imprisonment, based on a total offense level of 31 and a criminal history category of VI.

Brown did not object to the PSI, and the district court adopted the PSI's factual statements and guidelines calculation. In 2004, the district court sentenced Brown to concurrent 188–month sentences on Counts 1, 2, and 3, and sentenced him to a 60–month sentence for Count 4, to be served consecutively to the 188–month sentences, for a total of 248 months' imprisonment. At the time that Brown was sentenced, the guidelines were mandatory. Brown did not file a direct appeal.²

In March 2005, Brown filed a 28 U.S.C. § 2255 motion to vacate, in which he raised claims of ineffective assistance of counsel.

None of the claims related to the ACCA enhancement or the sentencing guidelines calculation. In July 2006, the district court denied the § 2255 motion and a certificate of appealability. In December 2006, this Court likewise denied a certificate of appealability.

II. SECTION 2241 PETITION

In August 2014, Brown filed the instant § 2241 petition, arguing that he no longer qualified for an enhanced sentence under the ACCA or U.S.S.G. § 4B1.4, based on the U.S. Supreme Court's intervening decision Begay v. United States , 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), overruled in part on other grounds by Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Brown stated that Begay established that, contrary to this Court's precedent at the time of his sentencing and § 2255 motion, the Florida crime of carrying a concealed firearm was not an ACCA-predicate violent felony. Brown claimed that he was incorrectly sentenced under the ACCA because he actually had only two predicate convictions, instead of the required three. Therefore, his 188–month sentence for possessing a firearm as a convicted felon exceeded the applicable statutory maximum of 120 months' imprisonment, and he needed to be resentenced within the appropriate statutory range.

Brown also claimed that his guidelines range should be recalculated because the district court erred in applying the § 4B1.4 enhancement, which is predicated on a defendant's status as an armed career criminal under the ACCA. According to Brown, because the erroneous guidelines calculation controlled his sentences for Counts 1, 2, and 3, he had to be resentenced without the guidelines enhancement on all three counts.³ Brown argued that the savings clause was the appropriate vehicle for this relief and that he met the Bryant standard.

The government responded that the district court lacked subject matter jurisdiction over Brown's petition because he failed to satisfy the Bryant requirements for accessing the § 2255(e) savings clause. The government conceded that Brown had met the first three Bryant prongs because: (1) his ACCA challenge was foreclosed by binding precedent during his sentencing and § 2255 proceedings; (2) Begay overturned that binding precedent; and (3) Begay applies retroactively on collateral review. However, according to the government, Brown could not satisfy the fourth prong by showing that, due to Begay error, his sentence exceeded the statutory maximum. The government claimed that Brown's total sentence for Counts 1, 2, and 3 was still below the statutory maxima for the concurrently-running drug offenses. Therefore, Brown was not "in custody in violation of the Constitution or laws or treaties of the United States," as required for habeas relief, because his total sentence and detention were legal. Lastly, the government asserted that the savings clause does not empower courts to adjust guidelines calculations.

In his reply, Brown asserted again that the district court had jurisdiction to review his ACCA claim and resentence him on Count 3. He argued that the government's reasoning would require the district court to ignore the statutory maximum created by Congress and violate separation-of-powers principles. Brown conceded that the district court lacked jurisdiction under the savings clause to resentence him on the drug offenses to correct the guidelines error; but he asserted that, under the sentencing package doctrine, the district court had a separate jurisdictional basis to resentence him as a matter of discretion on Counts 1 and 2 when it recalculated his sentence for the § 922(g) firearm offense. Brown argued that his sentences on Counts 1, 2, and 3 were part of the "same sentencing package."

The district court held a hearing on the § 2241 petition, at which the parties reiterated their arguments. Afterward, the district court issued an order dismissing Brown's petition for lack of jurisdiction. The court noted that the parties did not contest the first three Bryant factors, and found that Brown could not make the requisite showing on the fourth Bryant factor. It concluded that, though Brown's sentence for being a felon in possession of a firearm exceeded the statutory maximum for that particular count, his overall sentence was legal.

The district court reasoned that the language of the savings clause dictated this interpretation of Bryant 's fourth prong. It stated that § 2255(e) provides that a federal prisoner may file a § 2241 petition only when his prior § 2255 motion was "inadequate or ineffective to test the legality of [his] detention." The district court determined that Congress' use of the term "detention" indicates that § 2255(e) is concerned with "whether the overall detention is legal," and "not whether a particular sentence itself is legal." Therefore, unless a petitioner establishes that he is "being held without authorization by any congressional statute," the savings clause does not reach his claim.

As to the guidelines error, the district court stated that this Court's binding precedent squarely holds that the savings clause does not apply to guidelines-error sentencing claims. See Gilbert v. United States , 640 F.3d 1293, 1312 (11th Cir.2011) (en banc). It also concluded that this Court, in Bryant , instructed...