[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12056 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 9:08-cv-80816-DTKH,
9:05-cr-80135-DTKH-2
KEVIN NORRIS GUYTON,
lllllllllllllllllllllPetitioner-Appellant,
versus
UNITED STATES OF AMERICA,
lllllllllllllllllllllRespondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 22, 2011)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Kevin Guyton, a federal prisoner, appeals the denial of his pro se 28 U.S.C.
§ 2255 motion to vacate attacking his 262-month sentence of imprisonment.
Guyton contends that he received ineffective assistance of counsel at his sentence
hearing because his counsel failed to clearly articulate the objection to the use of a
prior conviction for extortion under Florida statute as a predicate “crime of
violence” for the career offender enhancement under U.S.S.G. §§ 4B1.1 and
4B1.2(a)(2). Guyton also contends that his Fifth Amendment due process rights
were violated because his sentence was enhanced based on a non-existent
offense—being a “career offender” based on only one prior conviction instead of
two. See U.S.S.G. § 4B1.1(a).
I.
In 2005 a grand jury indicted Guyton for one count of possession with intent
to distribute powder cocaine in violation of 21 U.S.C. § 841(a)(1). Before trial, the
government served Guyton with an 21 U.S.C. § 851 notice of the government’s
intent to use one prior felony drug offense to increase Guyton’s statutory
maximum under 21 U.S.C. § 841(b)(1) from 20 years to 30 years. In 2006, after a
jury trial, Guyton was convicted of possession with intent to distribute powder
cocaine. The presentence report listed Guyton’s statutory maximum at 30 years,
which Guyton does not dispute.
The PSR also recommended that Guyton be sentenced as a career offender
under U.S.S.G. § 4B1.1 based two prior predicate felonies, one prior “controlled
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substance offense” and one “crime of violence.” The “crime of violence,” which is
the only predicate offense at issue in this appeal, was a 1996 conviction for
extortion under Florida Statute § 836.05. Guyton’s recommended guidelines range
for his conviction with the career offender enhancement was 262 to 327 months.
Without the enhancement, Guyton’s recommended guidelines range would have
been 27 to 33 months.
At the sentence hearing Guyton’s counsel objected to the use of the 1996
extortion conviction as a predicate for the career offender enhancement, but he did
not specifically raise an argument that the Florida extortion statute under which
Guyton had been convicted did not fit the generic definition of extortion. After
hearing arguments from both sides, the district court concluded that the career
offender enhancement applied, set the advisory guidelines range at 262 to 327
months, and sentenced Guyton at the bottom end of his guidelines range—262
months imprisonment.
Guyton appealed his conviction and sentence to this Court. United States v.
Guyton, 256 Fed. App’x 276 (11th Cir. Nov. 27, 2007). The only argument raised
in his direct appeal relevant to his sentence was that the district court erred by
failing to submit the issue of the prior convictions used in applying the career
offender enhancement to the jury. Id. at 278–79. We rejected that argument and
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affirmed his conviction and sentence. Id.
In 2008 Guyton filed pro se a § 2255 motion to vacate his sentence, which
the district court denied. Guyton then filed pro se an application for certificate of
appealability, which the district court liberally construed to include requests for
issuance of a certificate on two questions. The district court granted Guyton a
certificate of appealability on both questions:
(1) Whether petitioner received ineffective assistance of counsel
based on sentencing counsel’s failure to object to the use of the
prior Florida extortion conviction as a predicate of the career
offender enhancement.
(2) Whether petitioner’s due process rights under the Fifth
Amendment were violated by imposition of an enhanced sentence
based on a non-existent offense - being a “career offender” based
on one prior drug conviction. See, e.g., Gilbert v. United States,
609 F.3d 1159 (11th Cir.), opinion vacated on rehearing en banc,
625 F.3d 716 (11th Cir. 2010).
We deal with each in turn.
II.
In reviewing a district court’s dismissal of a § 2255 motion, legal
conclusions are reviewed de novo and factual findings only for clear error. Rhode
v. United States, 583 F.3d 1289, 1290 (11th Cir. 2009). An ineffective assistance
of counsel claim presents a mixed question of law and fact, which we review de
novo. Payne v. United States, 566 F.3d 1276, 1277 (11th Cir. 2009). Guyton
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contends that he received ineffective assistance of counsel at his sentence hearing
because his counsel “failed to frame his objection to use of the [Florida] extortion
prior conviction in legal terms the court could understand.” He argues that because
of this failure his counsel’s performance “fell below a reasonably objective
standard.”
To prevail on an ineffective-assistance claim, a petitioner must show both
that his counsel’s performance was deficient, and that this deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064 (1984). To establish deficient performance, a petitioner must show that
counsel acted unreasonably in light of prevailing professional norms. Id. at 688,
104 S.Ct. at 2065. In other words, “a petitioner must establish that no competent
counsel would have taken the action that his counsel did take.” Chandler v. United
States, 218 F.3d 1305, 1315–16 (11th Cir. 2000) (en banc).
There is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” and a reviewing court must make
every effort “to eliminate the distorting effects of hindsight.” Strickland, 466 U.S.
at 689, 104 S.Ct. at 2065. Additionally, “as an acknowledgment that law is no
exact science, the rule that an attorney is not liable for an error of judgment on an
unsettled proposition of law is universally recognized.” Smith v. Singletary, 170
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F.3d 1051, 1054 (11th Cir. 1999); see also Jones v. United States, 224 F.3d 1251,
1258 (11th Cir. 2000) (“[W]e are not prepared to say categorically that counsel’s
failure to [preserve an argument] constituted prejudicial, ineffective nonfeasance
while the law was still unsettled.”). We need not address the prejudice prong if the
defendant has not established deficient performance. Strickland, 466 U.S. at 697,
104 S.Ct. at 2069.
Under the career offender guideline a defendant is sentenced as a career
offender if, among other requirements, 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). A “crime of violence” is defined in relevant part as: “any offense under
federal or state law . . . that . . . is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (emphasis
added). When considering the enumerated offenses under § 4B1.2(a)(2), the
district court must consider determine whether the state statute of conviction falls
within the generic definition of the offense independent of the labels used by
various states’ criminal codes. See Taylor v. United States, 495 U.S. 575, 592, 110
S.Ct. 2143, 2155 (1990).
At the time of Guyton’s sentence hearing in 2006, the Supreme Court had
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generically defined extortion in contexts other than U.S.S.G. § 4B1.2(a)(2) as
“obtaining something of value from another with his consent induced by the
wrongful use of force, fear, or threats.” Scheider v. Nat’l Org. for Women, Inc.,
537 U.S. 393, 409–10, 123 S.Ct. 1057, 1068–69 (2003) (defining generic extortion
for purposes of state law predicate offenses under RICO, 18 U.S.C. § 1961(1));
United States v. Nardello, 393 U.S. 286, 289–90, 89 S.Ct. 534, 536, (1969)
(defining extortion for purposes of offenses under the Travel Act, 18 U.S.C. §
1952). The Florida extortion statute under which Guyton was convicted in 1996
provided that:
Whoever, either verbally or by a written or printed communication,
maliciously threatens to accuse another of any crime or offense, or by
such communication maliciously threatens an injury to the person,
property or reputation of another, or maliciously threatens to expose
another to disgrace, or to expose any secret affecting another, or to
impute any deformity or lack of chastity to another, with intent thereby
to extort money or any pecuniary advantage whatsoever, or with intent
to compel the person so threatened, or any other person, to do any act or
refrain from doing any act against his will, shall be guilty of a felony of
the second degree.
Fla. Stat. § 836.05 (1995) (emphasis added). Neither the Supreme Court nor this
Court have previously addressed whether the Florida extortion statute under which
Guyton was convicted satisfies the generic definition of extortion applicable under
§ 4B1.2(a)(2). In fact, neither court has ever defined “extortion” in the specific
context of U.S.S.G. § 4B1.2(a)(2).
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Because the question of whether the Florida extortion statute was non-
generic was unsettled at the time of Guyton’s sentence hearing, his ineffective
assistance of counsel claim fails. See Smith, 170 F.3d at 1054. He has not pointed
to any authoritative decisional law that sets forth a generic definition of extortion
under U.S.S.G. § 4B1.2(a)(2) or that construes the Florida extortion statute as
non-generic. Additionally, without reaching the issue, it appears the Florida
extortion statute, which makes it a crime to “maliciously threaten[]” another person
with both physical and nonphysical harm, may well fall within the generic
definition the Supreme Court has given to extortion in other contexts—“obtaining
something of value from another with his consent induced by the wrongful use of
force, fear, or threats.” See Scheider, 537 U.S. at 409, 123 S.Ct. at 1068 (emphasis
added).
For these reasons, Guyton has not shown that his counsel’s failure to argue
at his sentence hearing that the Florida extortion statute did not fit within the
generic definition of extortion under § 4B1.2(a)(2) fell outside of “the wide range
of reasonable professional assistance.” See Strickland, 466 U.S. at 689, 104 S.Ct.
at 2065. Accordingly, Guyton has not met his burden to establish ineffective
assistance of counsel.
III.
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Guyton also contends that his Fifth Amendment due process rights were
violated because his sentence was enhanced based on a non-existent “crime of
violence”—being a “career offender” based on only one prior controlled substance
offense. See U.S.S.G. § 4B1.1(a). His Fifth Amendment claim fails, however,
because he is procedurally barred from raising it in a 28 U.S.C. § 2255 motion to
vacate.
In general, a criminal defendant who fails to object at trial or to raise an
issue on direct appeal is procedurally barred from raising the claim in a § 2255
motion, absent a showing of cause and prejudice or a showing of actual innocence.
See Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004) (“A defendant
can avoid a procedural bar only by establishing [either] . . . cause for not raising
the claim of error on direct appeal and actual prejudice from the alleged error . . .
[or] despite his failure to show cause for procedural default [that] a constitutional
violation has probably resulted in the conviction of one who is actually innocent. ”
(quotation marks and citations omitted)). Attorney errors that fall short of
constitutionally ineffective assistance do not constitute cause to excuse procedural
default. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566
(1991) (“So long as a defendant is represented by counsel whose performance is
not constitutionally ineffective under the standard established in Strickland . . . , we
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discern no inequity in requiring him to bear the risk of attorney error that results in
a procedural default.”).
Guyton did not object to his career offender enhancement on due process
grounds at his sentence hearing and did not raise the issue on direct appeal of his
sentence. He has therefore procedurally defaulted on his due process claim unless
he can show an exception applies. The only “cause” he points to for excusing his
procedural default is the alleged ineffective assistance he received when his
counsel failed to argue at his sentence hearing that the Florida extortion statute was
non-generic, which, as discussed above, was not actually ineffective assistance.
Because Guyton has failed to establish ineffective assistance, any purported errors
made by his counsel do not constitute cause to excuse his procedural default.
Coleman, 501 U.S. at 752–53, 111 S.Ct. at 2566 (“This error cannot be
constitutionally ineffective; therefore [the defendant] must ‘bear the risk of
attorney error that results in a procedural default.’”).
Guyton’s only remaining hope of overcoming his default lies in his
argument that he was “actually innocent” of his career offender enhancement. See
Lynn, 365 F.3d at 1234. That argument fails, however, because a defendant cannot
be “convicted of being guilty of the [career offender] enhancement.” Gilbert v.
United States, 640 F.3d 1293, 1320 (11th Cir. 2011) (en banc) (“If guidelines
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enhancements were crimes, they would have to be charged in the indictment and
proven to the jury beyond a reasonable doubt.”). Accordingly, Guyton is
procedurally barred from raising his due process claim in a § 2255 motion to
vacate sentence.
AFFIRMED.
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Kevin Norris Guyton v. United States
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2011-11-22
Citations: 447 F. App'x 136
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