United States v. Haynes
| Docket Number | 19-12335 |
| Decision Date | 24 August 2022 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICKY DOUGLAS HAYNES, JR., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Middle District of Florida D.C. Docket Nos. 6:07-cr-00054-JA-GJK-1 6:07-cr-00073-JA-KRS-1 Before WILLIAM PRYOR, Chief Judge, WILSON and ANDERSON, Circuit Judges.
Ricky Douglas Haynes, Jr. appeals his sentence of 240 months of imprisonment imposed when he was resentenced a second time for three counts of possessing cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1), one count of using and carrying a firearm during a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A), and one count of possessing a firearm and ammunition as a felon, id. § 922(g)(1). See 28 U.S.C. § 2255. We granted Haynes a certificate of appealability to address whether he was entitled to relief under the Fair Sentencing Act of 2010 Pub. L. No. 111-220, 124 Stat. 2372, but Haynes has abandoned that issue as "resolved" by the district court granting him relief under the First Step Act of 2018, Pub. L No. 115-391, 132 Stat. 5194. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). Haynes argues that the district court erred by resentencing him pursuant to the Armed Career Criminal Act and that the Act is unconstitutional. See 18 U.S.C. § 924(e). Haynes also argues that the district court erred by counting as a predicate offense his prior conviction in Florida for resisting an officer with violence, see id. § 924(e)(2)(B), and by treating as temporally distinct his convictions in 2001 for federal drug crimes that were charged in a single indictment. We affirm.
In 2007, Haynes pleaded guilty simultaneously to two indictments that collectively charged him with five crimes. He admitted, in case 07-54, to committing two firearm offenses, 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A), and one drug offense, 21 U.S.C. § 841(a)(1), and in case 07-73, he admitted to committing two similar drug offenses, 21 U.S.C. § 841(a)(1). Haynes's indictment in case 07-54 alleged that he had prior convictions in a Florida court in 1996 for resisting arrest with violence and for possession of cocaine, in 1998 for possession of cocaine, and in 2002 for possessing a firearm as a felon and for carrying a concealed firearm, and in the district court in 2001 for possessing cocaine base with intent to distribute. The United States notified Haynes that he faced enhancement of his sentence, and records attached to the notice evidenced that he had been convicted in 2001 of possessing cocaine base with intent to distribute on February 24, 2000, and on March 9, 2000.
Haynes's presentence investigation report classified him as an armed career criminal and a career offender. The presentence report identified as predicate offenses Haynes's prior convictions in 1996 for resisting arrest with violence, in 2002 for carrying a concealed firearm, and in 2001 for possessing cocaine base with intent to distribute. The criminal history section of Haynes's report described his numerous prior convictions, including those in 1994 for resisting arrest with violence, in 1995 for possession of cocaine, in 1997 for possession of cocaine, in 1999 for possession of a firearm by a felon and for possession of cocaine with intent to distribute, and in 2000 for three counts of possessing cocaine base with intent to distribute. Those prior convictions produced 12 criminal history points, and with two points added because Haynes committed his instant offenses less than two years after his release from custody, U.S.S.G. § 4A1.1(e), he received a criminal history category of VI.
Haynes objected, unsuccessfully, to his classification as an armed career criminal on the ground that his prior convictions for resisting arrest and carrying a concealed firearm did not qualify as violent felonies. But Haynes did not object to the existence of the prior convictions listed in the report or to his classification as a career offender. Haynes "ask[ed] for a much lower sentence than what the guideline . . . recommend[ed] in [his] case," but the prosecutor "ask[ed] the [district] court to certainly sentence following the guidelines." The prosecutor stressed that "[n]ot only is Mr. Haynes an armed career criminal, he's a career offender as well, the very example of what these categorizations and enhancements were designed for." And the prosecutor reminded the district court that it was "well aware [of] and . . . familiar with Mr. Haynes" because his "last case . . . was in front of Your Honor" and that Haynes's "criminal history" was "riddled with [prior convictions, including] resisting arrest with violence, possession of cocaine, possession with intent, . . . [and] possession of firearm by a convicted felon already in 1999."
The district court sentenced Haynes using the higher penalty that the Sentencing Guidelines yielded. See id. § 4B1.1. The district court sentenced Haynes in case 07-54 to three concurrent terms of 322 months of imprisonment, and in case 07-73, to two terms of 322 months of imprisonment to run concurrently with each other and with the sentence in case 07-54. We affirmed his convictions and sentences after an independent review of the record revealed no issues of merit, see Anders v. California, 386 U.S. 738 (1967). United States v. Haynes, 297 Fed.Appx. 856 (11th Cir. 2008).
In 2012, Haynes moved successfully to vacate his sentence in case 07-54 for being a felon in possession of a firearm. See 28 U.S.C. § 2254. Haynes argued, and the United States agreed, that his sentence of 322 months for being a felon in possession exceeded his maximum statutory penalty of 120 months. See 18 U.S.C. § 924(c)(1)(A)(i). Haynes also argued that, because his prior conviction for carrying a concealed firearm no longer qualified as a violent felony, see United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), he was not an armed career criminal. But the United States responded that, although carrying a concealed firearm was no longer a predicate offense, Haynes was not entitled to relief on that basis because he had been sentenced, and still qualified, as a career offender. The district court ruled that Haynes had not been sentenced as an armed career criminal and that he was entitled to have his sentence for being a felon in possession vacated on the ground his sentence exceeded the statutory maximum.
At resentencing, the district court acquiesced to defense counsel's request to "restructure" Haynes's sentence in case 07-54. During the hearing, the district court, probation officer, and prosecutor discussed the appropriate sentence for Haynes, as a career offender, for possessing a firearm as a felon:
The district court sentenced Haynes to 262 months for possessing cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1), and a concurrent term of 120 months for possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), with a consecutive term of 60 months for using and carrying a firearm during his drug trafficking, id. § 924(c)(1)(A).
In 2015, Haynes filed the motion to vacate that is the subject of this appeal. See 28 U.S.C. § 2255. Haynes argued to vacate his sentences in cases 07-54 and 07-73 because his counsel at resentencing in 2012 should have prevented two errors. Haynes argued that he had been misclassified as a career offender because his conviction in 1996 for resisting arrest was too old to count as a predicate offense and that his criminal history category had been miscalculated because his conviction for resisting arrest and his conviction in 1995 for possessing cocaine were too old to include in his criminal history score. The United States argued that Haynes had procedurally defaulted his challenges to his sentence by failing to raise them at trial, on appeal, or in his first motion to vacate. The United States also argued that counsel had not been ineffective at resentencing because he had been appointed for the limited purpose of contesting Haynes's sentence in 07-54 and because any objection to the career offender enhancement would have been untimely and procedurally barred.
The district court held a hearing on Haynes's motion. The district court acknowledged "the importance of finality," but it was troubled that "mistakes ha[d] been made" and proposed "just resentencing from scratch." The United States asserted that it had "made a mistake" by agreeing that Haynes was not an armed career criminal because he had been convicted in 2001 of "two separate incidents" of possessing cocaine base with intent to distribute, which with his conviction for "resisting [arrest] with violence, would make him an armed career criminal."
The district court granted Haynes's motion to vacate. 28 U.S.C. § 2255. The district court ruled that counsel at resentencing had performed deficiently for not opposing Haynes's classification as a career offender and not opposing the use of two stale convictions that resulted in him having 14 instead...
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