USCA11 Case: 23-10701 Document: 29-1 Date Filed: 04/01/2024 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10701
Non-Argument Calendar
____________________
VAUGHN ALEXANDER CROPPER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:22-cv-08018-AMM
____________________
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2 Opinion of the Court 23-10701
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Vaughn Cropper, a federal prisoner proceeding pro se, ap-
peals the district court’s denial of his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence of 188 months’ imprison-
ment on the ground that his claim was procedurally defaulted. Af-
ter careful review, we affirm.
I.
A jury found Cropper guilty of one count of possession of a
firearm by a person previously convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1). 1 In anticipation of sentencing, a probation
officer prepared a presentence investigation report (“PSR”). In the
report, the officer determined that Cropper was subject to the 15-
year mandatory minimum sentence in the Armed Career Criminal
Act (“ACCA”), because he had three prior serious drug offenses
“committed on occasions different from one another.” 18 U.S.C.
§ 924(e)(1). The offenses were an Alabama conviction for first-de-
gree marijuana possession, for which he was arrested on Septem-
ber 19, 2008; and two Alabama convictions for unlawful distribu-
tion of a controlled substance (marijuana), for which he was ar-
rested on November 16, 2008. The PSR noted that the marijuana
1 Cropper waived his right to counsel pre-trial and proceeded pro se through-
out the district court proceedings and on appeal. See United States v. Cropper,
812 F. App’x 927, 928 (11th Cir. 2020) (unpublished).
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23-10701 Opinion of the Court 3
possession offense was committed on or about February 22, 2007,
and the two distribution convictions stemmed from unlawful con-
duct committed on two different occasions—the first on or about
September 12, 2008, and the second on or about September 19,
2008.
Cropper objected to the PSR but not to the PSR’s determi-
nation that he had been convicted of three separate and distinct se-
rious drug offenses. At sentencing, the district court overruled
Cropper’s objections and sentenced him under ACCA to 188
months’ imprisonment. Cropper appealed. He also continued sim-
ultaneous proceedings in the district court.
Cropper moved in the district court to be released pending
appeal. At a hearing on the matter, Cropper indicated that he be-
lieved the ACCA enhancement “shouldn’t apply . . . because the
three prior felonies being applied were all one case.” Crim. Doc. 91
at 17. 2 A magistrate judge denied his motion, relying on the PSR to
conclude that Cropper’s three prior drug convictions were com-
mitted on different occasions. See 18 U.S.C. § 924(e)(1). Cropper
sought review of the magistrate judge’s order, arguing that his ma-
rijuana possession offense did not, as stated in the PSR, take place
on February 22, 2007, but rather occurred on September 19, 2008,
the same day as one of his distribution offenses that served as an
ACCA predicate. Cropper attached a pretrial document prepared
by a probation officer listing his criminal history. The document
2 “Crim Doc.” numbers are the district court’s docket entries in Cropper’s un-
derlying criminal case.
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4 Opinion of the Court 23-10701
listed his marijuana possession conviction as based on offense con-
duct “on or about September 19, 2008.” Crim. Doc. 110-4 at 8. He
also raised a double jeopardy claim. Cropper argued that the mari-
juana possession conviction, for which the PSR listed an offense
date of February 22, 2007, violated the Double Jeopardy Clause of
the Fifth Amendment because he previously had been convicted
for the same offense conduct.
The district court denied Cropper’s motion. As relevant
here, the court stated that Cropper had not “argue[d] that this
Court should change his sentence so that [ACCA] does not apply,”
but rather had “present[ed] this argument to challenge the magis-
trate judge’s alternative finding that [Cropper] should be detained”
pending appeal “because none of his appeal issues—including the
issue that the [ACCA] enhancement was incorrectly applied to
him—are likely to result” in a new sentence. Crim. Doc. 112 at 12
n.2. Further, the court explained, even if Cropper was asking for a
lesser sentence, his failure to object to the relevant facts in the PSR
meant that he was deemed to have admitted those facts, including
the dates on which the offenses were committed. Cropper did not
appeal this order.
Meanwhile, in this Court, Cropper challenged his marijuana
possession ACCA predicate on the same double jeopardy grounds
he raised in the district court. He did not argue that the marijuana
possession offense was committed on the same occasion as one of
his distribution offenses. We rejected Cropper’s double jeopardy
argument, concluding that he could not use an appeal of his federal
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23-10701 Opinion of the Court 5
sentence to collaterally attack his prior state conviction. See United
States v. Cropper, 812 F. App’x 927, 931–32 (11th Cir. 2020) (un-
published).
After Cropper was unsuccessful seeking relief via a motion
for release pending appeal in district court and before this Court on
direct appeal, he filed a § 2255 motion in district court. In his mo-
tion he alleged that “[n]ew evidence prove[d] that two of [his]
ACCA-predicates actually arose from a single criminal episode and
did not occur on different occasions.” Civ. Doc. 1 at 4.3 Thus, he
argued, he lacked three prior serious drug offense convictions and
should not have received an ACCA-enhanced sentence. See 18
U.S.C. § 924(e)(1). He alleged that his Alabama marijuana posses-
sion conviction and one of his distribution convictions “both oc-
curred on September 19, 2008, at the same time and place during a
single criminal episode.” Id. Cropper acknowledged that he did not
raise the issue in his direct appeal, explaining that at the time he
“lacked a key piece of evidence to sufficiently support this claim”
and that he had “withheld this issue” to meet page limit require-
ments. Id. The evidence, Cropper said, was the State of Alabama’s
concession in a November 2020 state-court brief that the February
22, 2007 date of his marijuana possession was a “clerical error” and
3 “Civ. Doc.” numbers are the district court’s docket entries in Cropper’s
§ 2255 case.
Cropper’s § 2255 motion contained two claims, but only one is at issue
in this appeal—the one about which the district court issued a certificate of
appealability.
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6 Opinion of the Court 23-10701
that the possession actually occurred on September 19, 2008, the
same day as one of his distribution charges. Civ. Doc. 3 at 8. Crop-
per explained that he did not raise the issue on direct appeal be-
cause he was not in possession of the brief then, noting that this
Court decided his direct appeal in May 2020. Cropper attached Al-
abama’s brief, as well as a state criminal complaint dated Septem-
ber 23, 2008, which specified that he unlawfully possessed mariju-
ana “on or about 9/19/2008.” Id. at 117; see also id. at 42 (criminal
form noting “OFF: 09192008”).
The district court denied Cropper’s § 2255 motion. The
court found that Cropper had failed to raise the clerical-error claim
on direct appeal despite his ability to do so, and so the claim was
procedurally defaulted. The court further concluded that Cropper
could show neither cause nor prejudice to excuse the default. And,
the court concluded, Cropper had not shown that the default could
be excused on the ground of actual innocence. The court nonethe-
less granted Cropper a certificate of appealability on whether his
“case is truly extraordinary and requires the consideration of [a]
procedurally defaulted claim[].” Civ. Doc. 9 at 26. This is Cropper’s
appeal.
II.
In a § 2255 proceeding, we review legal issues de novo and
factual findings under a clear error standard. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004).
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III.
Section 2255 permits a federal prisoner to obtain relief from
a sentence when that sentence was imposed in violation of the
Constitution or laws of the United States. 28 U.S.C. § 2255(a). Gen-
erally, a criminal defendant must advance an available challenge to
his conviction or sentence on direct appeal or else he is barred from
presenting that claim in a § 2255 proceeding. Lynn, 365 F.3d at 1234;
see also Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021)
(same). If a defendant fails to do so and then advances his claim in
a § 2255 proceeding, his claim is procedurally defaulted and he
“cannot succeed on collateral review unless he can either (1) show
cause to excuse the default and actual prejudice from the claimed
error, or (2) show that he is actually innocent of [his offense of]
conviction.” Granda, 990 F.3d at 1286.
Cropper argues that he can satisfy both exceptions to the
procedural default rule. As to cause and prejudice, he argues that
he lacked the necessary evidence to prove that his marijuana pos-
session conviction was committed on the same occasion as one of
his distribution convictions until after his direct appeal concluded.
Acknowledging that he had some evidence during his direct appeal,
Cropper asserts that the State of Alabama’s brief was the linchpin
for his argument because it took the amount of evidence he had
over the threshold he would need to prove his claim. As to actual
prejudice, he argues that because of the error in his PSR he was
sentenced to over five years above the ten-year statutory maxi-
mum that would have applied had he not been given the ACCA
enhancement.
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8 Opinion of the Court 23-10701
We must reject Cropper’s cause-and-prejudice argument.
The question we must ask is not whether legal developments or
new evidence has made a claim easier or better, but whether at the
time of the direct appeal the claim was available at all. Lynn, 365
F.3d at 1235. Here, the claim that two of his offenses were not com-
mitted on separate occasions was available to Cropper at sentenc-
ing and on direct appeal. Indeed, Cropper raised the claim in the
district court in support of his motion for release pending appeal,
further demonstrating its availability. He did not, unfortunately,
raise it to this Court. Cropper therefore cannot show cause to ex-
cuse the procedural default. We need not address prejudice.
Cropper also argues that he can satisfy the actual-innocence
exception to procedural default. He asserts that he was actually in-
nocent of being an armed career criminal. Precedent forecloses
Cropper’s argument that he is actually innocent. See Williams v.
Warden, 713 F.3d 1332, 1345–46 (11th Cir. 2013)(holding that actual
innocence refers only to factual innocence of crimes and that a chal-
lenge to whether a prior offense qualified as an ACCA predicate
was a claim of legal innocence), overruled on other grounds by McCar-
than v. Dir. of Goodwill Indus.-Suncoast, 851 F.3d 1076, 1096 (11th
Cir. 2017) (en banc).
For these reasons, we affirm the district court’s denial of
Cropper’s § 2255 motion.
AFFIRMED.