Gilbert v. U.S.A

• Decision Date: 21 June 2010
• Docket Number: No. 09-12513.,09-12513.
• Parties: Ezell GILBERT, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

609 F.3d 1159

Ezell GILBERT, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 09-12513.

United States Court of Appeals Eleventh Circuit.

June 21, 2010.

George Allen Couture, Stephen J. Langs, Rosemary T. Cakmis, Fed. Pub. Defenders, Orlando, FL, for Petitioner-Appellant.

Linda Julin McNamara, Tampa, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and MARTIN and HILL, Circuit Judges.

HILL, Circuit Judge:

Ezell Gilbert was sentenced for a crack cocaine offense in 1997. His sentence was enhanced based upon a finding by the district court that he was a career offender under the Sentencing Guidelines. He filed the instant motion to vacate his sentence which the district court denied. For the following reasons, we reverse, vacate Gilbert's sentence and remand for re-sentencing and other appropriate action.

I.

Ezell Gilbert was indicted for possession with intent to distribute both crack cocaine and marijuana in 1995. He plead guilty to both counts. His base offense level of 32 was calculated pursuant to U.S.S.G. § 2D1.1, for which the range of imprisonment at the time of sentencing was 151-188 months. At the government's request, however, he was classified as a career offender under U.S.S.G. § 4B1.1, based on two prior convictions-one for possessing with intent to sell crack cocaine and a second for carrying a concealed firearm. As a career offender, Gilbert's sentencing range was increased to 292-365 months. ¹ At his sentencing hearing, Gilbert objected to the application of the career offender guideline, specifically arguing that his prior conviction for carrying a concealed weapon was not a “crime of violence” as defined in § 4B1.2. The district court ordered briefing on the issue. At the subsequent re-convening of the hearing, the district court announced it believed that even the minimum 292-month career offender sentence was “too high,” but that it was without discretion under the then-mandatory Sentencing Guidelines to impose a lesser sentence. The court said:

The fact that I think the sentence is too high is immaterial.... I don't see any authority under the law for me to downwardly depart. So, counsel, I have given you reversible error if you can convince the Eleventh Circuit that I'm wrong.

* * *

If I'm wrong, they will correct it. Because if I could do it legally, I would. I don't think I can. The U.S. Attorney tells me I can't Probation tells me I can't, so I don't think I can even though I would if I could. So, there's grounds for appeal to reverse me, if you can find it.

Gilbert was sentenced to 292 months' imprisonment.²

Gilbert appealed his sentence. On appeal, he argued that he was inappropriately categorized as a career offender because carrying a concealed firearm was not an offense that would qualify as a crime of violence under the career offender provisions of the guidelines. In affirming his sentence, we held, as a matter of first impression, that “carrying a concealed weapon in violation of Florida law is a ‘crime of violence’ under U.S.S.G. § 4B1.2.” United States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir.1998). Gilbert filed a petition seeking a rehearing of this determination and for rehearing en banc, but we denied relief. United States v. Gilbert, 156 F.3d 188 (11th Cir.1998) (table). Gilbert filed a petition for writ of certiorari to the United States Supreme Court, seeking review of his enhancement as a career offender, but this too was denied. Gilbert v. U.S., 526 U.S. 1111, 119 S.Ct. 1754, 143 L.Ed.2d 787 (1999).

In 1999, Gilbert filed a pro se motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. The district court denied the motion and both the district court and we denied him a certificate of appealability. Gilbert continued serving his sentence, all paths to relief now exhausted by him.

In 2008, the Supreme Court decided the question of what sort of prior convictions permit enhancement under the Armed Career Criminal Act (the “ACCA”) of federal felon-in-possession sentences. See 18 U.S.C. § 924(e)(B)(ii). The ACCA, like § 4B1.2 of the Sentencing Guidelines, permits enhancement of the underlying sentence where the defendant has prior convictions for a “violent felony.”³ In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the Court held that the term “violent felony” applies only to crimes that are “roughly similar, in kind as well as in degree of risk posed, to the examples [in the ACCA] themselves.” Id. at 1585. The Court explained that the crimes listed in the ACCA all required “purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at 1586. The Court rejected a broader interpretation of “violent felony” as inconsistent with Congress' intent in the ACCA to identify those individuals who, having previously committed purposeful, violent, and aggressive crimes, are more likely to “deliberately point the gun and pull the trigger” in the future. Id. at 1587-88.

That same year, in United States v. Archer, 531 F.3d 1347 (11th Cir.2008), we applied the Begay analysis to reverse our prior holding, in Gilbert's own case, that carrying a concealed firearm is a crime of violence under the career offender sentencing guideline, § 4B1.2. We said that carrying a concealed firearm “does not involve the aggressive, violent conduct that the Supreme Court noted is inherent in the enumerated crimes.” Id. at 1351. Accordingly, we abrogated Gilbert under the authority of Begay, and held that “the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.” Id. at 1352.

Later that same year, the United States Sentencing Commission published Amendment 706, which provides a two-level reduction in base offense levels for crack cocaine offenses. The Commission made Amendment 706 retroactive.

In response to these developments in the law, the district court in this case sua sponte ordered the parties to file responses regarding Gilbert's eligibility for a sentence reduction. The government responded that Gilbert was not eligible for an Amendment 706 reduction because he was sentenced pursuant to the career offender guideline, not the crack cocaine guideline to which the amendment applies. The government further argued that Gilbert was not entitled to any relief from his career offender status-under Begay and Archer -because any such motion would be a successive one under 28 U.S.C. § 2255, and, therefore, disallowed in the absence of a new constitutional rule. See § 2255(h).⁴ Since Begay announced only a new rule of statutory construction, the district court reluctantly agreed, stating:

Unfortunately, Mr. Gilbert is in the unenviable position of having to remain in prison even though under the present interpretation of the law he is no longer deemed a career offender and has served the time that would be required of him were he sentenced today. Salt to the wound is that he legally challenged the very issue that now incarcerates him-but lost. It is faint justice to tell him now that he was right but there is no legal remedy. Having exhausted all avenues known to the court, the Court determines that at this time it is unable to provide relief to Mr. Gilbert under the law as it currently exists.

In 2009, Gilbert filed a “Motion to Reopen and Amend First 28 U.S.C. § 2255 Motion.” To avoid the successive motion bar, he requested permission to reopen his first § 2255 motion to include a challenge to the career offender enhancement. The government opposed the motion, arguing no relief was available. Gilbert replied that the district court could treat the motion as one for relief under § 2241, pursuant to the savings clause of § 2255, under the authority of Wofford v. Scott, 177 F.3d 1236 (11th Cir.1999) and the doctrine of “actual innocence.” The district court denied Gilbert's motion, holding that his claim did not meet the Wofford requirement of a conviction for a nonexistent offense.

The district court granted Gilbert a certificate of appealability on this issue.⁵

At the time of this writing, Gilbert has served 171 months in prison. Without the career offender enhancement, Gilbert's then-mandatory Sentencing Guidelines range of imprisonment at the time of sentencing would have been 151-188 months. Furthermore, had he not been sentenced as a career offender, under Amendment 706 to the Sentencing Guidelines, he might now be entitled to a two-level reduction in his offense level, resulting in a Guideline range of imprisonment of just 130-162 months, making him eligible for immediate release. ⁶

The government's position, however, is that, despite the error in his sentence, Gilbert is without a legal remedy, his sentence must stand, and he must remain incarcerated. Although made in good faith and based upon its understanding of the law, the government's statement at oral argument that Gilbert is entitled to no relief from an illegal sentence cannot be the law. The common law tradition of the “Great Writ” cannot be so moribund, so shackled by the chains of procedural bars and rigid gatekeeping that this court is not authorized to grant relief to one who is “in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2241. Fiat Justitia, Ruat Coelum.⁷

II.

Section 2255 permits a federal prisoner to collaterally attack his conviction or sentence.⁸ It substitutes attack by motion for the common law petition for writ of habeas corpus, which was accorded federal prisoners in the initial Judiciary Act of 1789, and is now codified at 28 U.S.C. § 2241. In 1996, the Antiterrorism and Effective Death Penalty Act (the “AEDPA”), amended § 2255 to prevent the filing of a second or successive motion challenging a federal conviction or sentence. The purpose of the statute was to achieve finality in convictions by barring successive and abusive collateral attacks....