Terry v. United States
| Decision Date | 06 May 2020 |
| Docket Number | Case No.: 3:10-cr-17-J-34JRK,Case No.: 3:13-cv-1140-J-34JRK |
| Parties | ANTHONY JEROME TERRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This case is before the Court on Petitioner Anthony Jerome Terry's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, Motion to Vacate)1 and motions for leave to amend (Civ. Doc. 44, First Motion to Amend; Civ. Doc. 53, Second Motion to Amend). At the Court's direction, the United States responded to the first two motions. (Civ. Doc. 7, Response to Motion to Vacate; Civ. Doc. 48, Response to First Motion to Amend). Additionally, the Court has considered Terry's reply briefs (Civ. Doc. 8, First Reply Brief; Civ. Doc. 50, Second Reply Brief), notices of supplemental authority, (Civ. Doc. 4, First Notice of Supplemental Authority; Civ. Doc. 10; Second Notice of Supplemental Authority), and supplemental memorandum regarding the impact of Johnson v. United States, 135 S. Ct. 2551 (2015) (Civ. Doc. 11, Johnson Memorandum). Thus, the case is ripe for a decision.
Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings2, the Court has considered the need for an evidentiary hearing and determines that a hearing is not necessary to resolve the merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (); Patel v. United States, 252 F. App'x 970, 975 (11th Cir. 2007).3 For the reasons set forth below, Terry's Motion to Vacate and motions for leave to amend are due to be denied.
On January 14, 2010, a grand jury sitting in the Middle District of Florida returned a five-count Indictment against Terry and a co-defendant, Roland Deangelo Martin. (Crim. Doc. 1; Indictment). In Counts One and Three, the United States charged Terry and Martin with distributing and possessing with intent to distribute cocaine, respectively, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). In Count Two, it charged Terry and Martin with maintaining a residence for the purpose of distributing cocaine, in violation of 21 U.S.C. §§ 856(a)(2) and 856(b). In Count Four, it charged Terry and Martin with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Finally, in Count Five, the United States charged Terry with being a convicted felon inpossession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Terry initially pled not guilty to the charges. (Crim. Doc. 17; Minute Entry of Arraignment).
On October 1, 2010, Terry entered a plea of guilty to Counts Three and Four pursuant to a written Plea Agreement. (Crim. Doc. 75; Plea Agreement), (see also Crim. Doc. 220; Plea Transcript). In exchange for his guilty plea, the United States agreed to dismiss Counts One, Two, and Five of the Indictment. Plea Agreement at 3. The Magistrate Judge who presided over the change-of-plea colloquy recommended that the Court accept the guilty plea as "knowledgeable and voluntary as to each Count." (Crim. Doc. 76; Report and Recommendation on Guilty Plea). The Court adopted the recommendation and accepted Terry's guilty plea. (Crim. Doc. 77; Acceptance of Guilty Plea).
In the Presentence Investigation Report (PSR), the Probation Office determined that Terry's offense level was 32 under U.S.S.G. § 4B1.1 because he qualified to be sentenced as a career offender. PSR at ¶¶ 39, 40. In doing so, the Probation Office relied on two prior convictions: (1) a 2005 conviction in Florida for lewd and lascivious battery, and (2) a 1999 conviction in Florida for the sale or delivery of cocaine. Id. at ¶¶ 39, 55, 58. Terry received a three-level reduction under U.S.S.G. §§ 3E1.1(a) and (b) for acceptance of responsibility, resulting in a total offense level of 29. PSR at ¶¶ 41, 42. Because Terry qualified to be sentenced as a career offender, his Criminal History Category was VI. Id. at ¶ 61. As a result, Terry's advisory sentencing range under the United States Sentencing Guidelines was between 262 and 327 months in prison. Id. at ¶¶ 44, 95-97.
At sentencing, Terry objected to the career offender enhancement. (Crim. Doc. 177; Sentencing Memorandum), (Crim. Doc. 221; Sentencing Tr. Vol. I at 12-42). Specifically, Terry argued that his prior conviction for lewd and lascivious battery was not a "crime ofviolence" under the Sentencing Guidelines. Sentencing Memorandum at 3-9. In support, he asserted that the lewd and lascivious battery statute, Florida Statute section 800.04(4), is indivisible and broader than the definition of a crime of violence under the career offender guideline's residual clause. Terry also argued that even if the modified categorical approach applied, the offense still was not a crime of violence based on the Shepard4 documents.
After hearing argument and considering the guidance from United States v. Harris, 608 F.3d 1222 (11th Cir. 2010), Curtis Johnson v. United States, 559 U.S. 133 (2010), Begay v. United States, 553 U.S. 137 (2008), abrogated by Johnson, 135 S. Ct. 2551, and Shepard, 544 U.S. 13, the Court determined that application of the modified categorical approach was necessary to determine whether Terry's conviction for lewd and lascivious battery qualified as a crime of violence. Sentencing Tr. Vol. I at 32-36. The Court then reviewed the charging document, the judgment of conviction, the guilty plea and negotiated sentence document, and the transcript of the plea colloquy to "determine whether [Terry's] conduct involved purposeful, violent, and aggressive conduct." Id. at 36-37. The Court observed that according to the plea transcript, the 14-year old victim reported being raped, and a medical evaluation showed that the victim suffered tears, lacerations, and abrasions near her genitalia. Id. at 37. The Court found those facts to be "consistent with a [forcible] sex act and with what we define as rape, not just the strict liability statutory rape." Id. The Court concluded that the plea colloquy was "sufficient to establish purposeful, violent, and aggressive conduct on the part of [Terry] such that the violation of [section] 800.04(4) that he was convicted of in 2002 would appear ... to fall within the definition of a crime ofviolence under [U.S.S.G. §] 4B1.1 and as it's defined in 4B1.2." Id. Additionally, the Court noted that the application notes to § 4B1.2 specifically identify a forcible sex offense, "which is what the plea colloquy supports was the crime here," as a crime of violence. Id. However, the Court clarified that it was "not relying solely" on the fact that the application notes list forcible sex offenses as crimes of violence. Id. Having considered the parties' arguments, the applicable authority, and the Shepard approved documents, the Court concluded that Terry's prior conviction for lewd and lascivious battery qualified as a crime of violence for purposes of the career offender enhancement. Id. at 38.
Having overruled Terry's objection to the career offender designation, the Court determined that Terry's advisory sentencing range under the Guidelines was 262 to 327 months in prison. Id. at 47, 52. Despite his lengthy criminal record, the Court varied more than five years below the Guidelines range, imposing a total term of imprisonment of 198 months, consisting of 138 months as to Count Three (possession of cocaine with intent to distribute) and a mandatory consecutive term of 60 months in prison as to Count Four (possession of a firearm in furtherance of a drug trafficking crime). (Crim. Doc. 222; Sentencing Tr. Vol. II at 19). In varying below the Guidelines range, the Court cited Terry's personal history and his attempt to assist law enforcement authorities in the investigation of other crimes, which did not result in the filing of a motion for a downward departure. Id. at 14-15, 21-22.
Terry appealed the sentence, "argu[ing] that the district court erred in finding that his prior Florida conviction for lewd and lascivious battery on a minor constituted a crime of violence sufficient to support his career-offender enhancement." United States v. Terry, 494 F. App'x 991, 992 (11th Cir. 2012). The Eleventh Circuit rejected this argument. Id. at996-97. The court explained that "[t]he district court ... was permitted to apply the modified categorical approach because Terry's statute of conviction, § 800.04(4), contains different statutory phrases—some of which that qualify as crimes of violence and some of which do not." Id. at 997 (citations omitted). The court further explained:
Unlike in Harris, the district court here had access to "specifics" regarding Terry's prior conviction, beyond merely the statutory language and charging document. The government submitted a transcript of Terry's plea hearing, a Shepard-approved document, showing that he agreed to the state's factual basis for his plea. See [United States v. Palomino-Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010)]. Specifically, the state prosecutor asserted that the 14-year-old victim had reported being raped and a medical evaluation corroborated her report, showing that she had tears, abrasions, and lacerations near her vagina. Terry argues that he agreed to the factual basis for his plea in state court because he believed the guilty plea to be in his best interest, not because he committed any forcible acts. Nonetheless, the district court was permitted to rely on the plea hearing transcript, under the modified categorical approach, in determining whether Terry's prior offense constituted a crime of violence. SeePalomino Garcia, 606 F.3d at 1328. The victim's report that she was raped and the...
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