Roberto Delgado v. United States , 475 F. App'x 717 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13033 APRIL 24, 2012
________________________ JOHN LEY
CLERK
D. C. Docket Nos. 08-80967-CV-DTKH,
05-80193 CR-DTK
ROBERTO DELGADO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 24, 2012)
Before HULL and FAY, Circuit Judges, and BOWEN,* District Judge.
*
Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
PER CURIAM:
In May 2006, Appellant Roberto Delgado was tried and convicted of
possession of a firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2); possession with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C); and carrying a firearm during a drug-trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A)(i). The presentence investigation report
(“PSI”) classified Delgado as a career offender, pursuant to U.S.S.G. § 4B1.1(a),
based on his prior felony convictions for burglary of a dwelling and for carrying a
concealed weapon. The career-offender classification increased Delgado’s total
offense level from 24 to 37 and his criminal history category to VI, yielding an
advisory guidelines range of 360 months to life imprisonment.
At his sentencing in July 2006, Delgado argued that his burglary conviction
did not qualify as a “crime of violence” within the language and meaning of the
career-offender guideline. See U.S.S.G. § 4B1.1. However, Delgado did not
challenge at all his other conviction for carrying a concealed weapon. At the time
and as it had for some years, a prior conviction for carrying a concealed weapon
qualified as a “crime of violence” under the career-offender guideline. See United
States v. Adams, 316 F.3d 1196, 1197 (11th Cir. 2003); United States v. Gilbert,
138 F.3d 1371, 1372 (11th Cir. 1998), abrogated by United States v. Archer, 531
2
F.3d 1347, 1352 (11th Cir. 2008). Delgado also requested (1) a downward
departure on the ground that his criminal history category overrepresented his
criminal history and (2) a downward variance based on the 18 U.S.C. § 3553(a)
factors. The district court acknowledged its authority to vary downward but found
no basis for doing so in Delgado’s case.1
After considering the § 3553(a) factors, the district court imposed
consecutive sentences of 120 months’ imprisonment for the felon-in-possession
conviction, 180 months’ imprisonment for the possession-with-intent-to-distribute
conviction, and 60 months’ imprisonment for the conviction for possessing a
firearm in connection with a drug-trafficking offense.2 None of the sentences
exceeded the statutory maximum for the particular crime of conviction.3
1
The district court did sustain Delgado’s objection to a two-point enhancement for
obstruction of justice based on Delgado’s sworn testimony during a status hearing before the
magistrate judge. The magistrate judge asked Delgado about his assets, and Delgado failed to
disclose to the magistrate judge a $100,000 certificate of deposit in his name. The district court
sustained Delgado’s objection to the two-point enhancement after finding that the government
failed to meet its burden to show that Delgado’s misstatement was made willfully and with the
intent to mislead the magistrate judge.
2
The district court imposed consecutive sentences on the first two counts of conviction in
accord with U.S.S.G. § 5G1.2(d), which provides: “If the sentence imposed on the count
carrying the highest statutory maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total punishment” provided by the
advisory guidelines range. Section 924(c)(1)(A)(i) states that the 60-month sentence for using or
carrying a firearm during a drug-trafficking offense must run consecutively to the punishment
provided for the drug-trafficking offense.
3
The statutory maximum sentence for a violation of 18 U.S.C. § 922(g)(1) is 120 months.
See 18 U.S.C. § 924(a)(2). The statutory maximum sentence for Delgado’s violation of 21
3
Accordingly, Delgado’s total sentence was 360 months.
Delgado appealed his convictions and sentences, and this Court affirmed on
October 3, 2007. See United States v. Delgado, 250 F. App’x 268 (11th Cir. 2007)
(unpublished). Although Delgado challenged his career-offender designation on
appeal, he did so solely on the ground that his two prior convictions were related
and thus should not have been counted as two separate convictions. Delgado
petitioned the U.S. Supreme Court for certiorari, which was denied on May 27,
2008. As he failed to do on direct appeal, Delgado failed to assert in his petition
for certiorari that his conviction for carrying a concealed weapon did not qualify as
a “crime of violence” under the career-offender guideline in U.S.S.G. § 4B1.1.
In April 2008 (after this Court affirmed Delgado’s convictions and sentences
but before the Supreme Court denied his petition for certiorari), the Supreme Court
decided Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008). Begay
holds that driving under the influence is not a “violent felony” within the meaning
of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), because the
offense does not involve “purposeful, violent, and aggressive conduct.” 553 U.S.
at 145, 128 S. Ct. at 1586. Two months later, in June 2008, this Court decided
U.S.C. § 841(a), which involved less than 500 grams of cocaine, is 240 months. See 21 U.S.C.
§ 841(b)(1)(C). Section 924(c)(1)(A)(i) provides a mandatory consecutive sentence of 60
months’ imprisonment for using or carrying a firearm during a drug-trafficking crime.
4
United States v. Archer, which holds—based on the principles of Begay—that a
prior conviction for carrying a concealed firearm does not constitute a “crime of
violence” within the meaning of the career-offender guideline in U.S.S.G. § 4B1.1.
531 F.3d 1347, 1352 (11th Cir. 2008). Archer expressly abrogated prior Circuit
precedent to the contrary. Id.Two months after Archer, Delgado filed a pro se motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. In pertinent part, Delgado
argued for the first time that, in light of Archer, he was “actually innocent” of the
career-offender guidelines enhancement because his prior conviction for carrying a
concealed weapon did not qualify as a “crime of violence.” Citing an array of
cases concerning the actual-innocence exception permitting successive or
procedurally defaulted collateral challenges, Delgado argued that actual-innocence
claims are applicable to non-capital sentence enhancements. After noting that all
of Delgado’s claims could have been but were not raised at sentencing or on direct
appeal, the district court denied Delgado’s § 2255 motion. The district court
denied a certificate of appealability (“COA”), but this Court granted a COA.
Our decision in McKay v. United States, 657 F.3d 1190 (11th Cir. 2011),
controls the disposition of this appeal. In McKay, the § 2255 movant, McKay,
failed to appeal his sentence and claimed in his § 2255 motion, as Delgado does in
5
this case, that he was actually innocent of his sentence on the ground that the
district court, at sentencing, erred in treating his prior conviction for carrying a
concealed weapon as a “crime of violence” under the career-offender guideline in
U.S.S.G. § 4B1.1. Although the district court denied McKay relief and a COA,
this Court granted him a COA on the following issue, which is nearly identical to
the COA issued in this appeal: “[w]hether the district court erred in finding that
[McKay’s] sentencing claim about the career-offender enhancement is not
cognizable in proceedings under 28 U.S.C. § 2255, and, if cognizable, whether this
sentencing claim is procedurally defaulted in any event.”4 Id. at 1195.
This Court ultimately declined to address the cognizability issue in McKay,
but affirmed the district court’s denial of relief based upon McKay’s procedural
default, i.e., his failure to raise his Archer claim on direct appeal. Id. at
1195–1200. McKay notes that a petitioner’s procedural default can be excused
4
This Court granted Delgado a COA on the issue of whether “the district court erred in
determining that a freestanding challenge to a career offender sentence imposed under U.S.S.G.
§ 4B1.1, brought pursuant to United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), fails to
state a cognizable claim on collateral review.” In Delgado’s case, the government raised
procedural default in the district court and in this Court. Even though the COA in this case does
not expressly mention procedural default, we may consider the issue in resolving this case. See
Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1009–10 (11th Cir. 2012) (addressing a
threshold issue “[n]ecessarily subsumed” within the COA granted by the district court, despite
the fact that the COA did not expressly include the issue); Lawrence v. Florida, 421 F.3d 1221,
1225–26 (11th Cir. 2005) (finding questions of applicability of state-impediment and
equitable-tolling exceptions to AEDPA statute of limitations were subsumed within certificate of
appealability on issue of whether petitioner’s § 2254 petition was barred by the AEDPA statute
of limitations); McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (stating “we
. . . construe the issue specification in light of the pleadings and other parts of the record”).
6
only if the petitioner can show either (1) cause and prejudice or (2) actual
innocence either of the crime itself or, in the capital sentencing context, of the
sentence. Id. at 1196. McKay did not argue the cause-and-prejudice exception to
the procedural-default rule. Id.
This Court rejected McKay’s claim that he was “actually innocent” of his
career-offender sentence on the ground that “‘actual innocence means factual
innocence, not mere legal insufficiency.’” Id. at 1197 (quoting Bousley v. United
States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998) (emphasis added)). Like
Delgado in this case, McKay made the purely legal argument that his prior
conviction for carrying a concealed weapon should not have been classified as a
“crime of violence” under § 4B1.1. Id. at 1199. And, like Delgado, McKay did
not deny that he actually committed the crime of carrying a concealed weapon, and
thus he did not claim factual innocence of the predicate “crime of violence.” Id.
In rejecting McKay’s claim, this Court kept the actual-innocence exception
to procedural default narrow. Id. at 1999. Specifically, this Court “decline[d] to
extend the actual innocence of sentence exception to claims of legal innocence” of
a guidelines sentencing enhancement. Id. The facts of Delgado’s case are
indistinguishable from McKay in all material respects.5 Therefore, we cannot
5
Like McKay, Delgado in this appeal does not argue the cause-and-prejudice exception to
the procedural-default rule. And even if he had made this argument, Delgado could not establish
7
excuse Delgado’s procedural default based on his claim that he is actually innocent
of his advisory guidelines sentences, which do not exceed the statutory maximum
sentence for each of his crimes conviction.6
AFFIRMED.
cause for his counsel’s failure to raise the “crime of violence” argument at sentencing or on
direct appeal. An attorney is not ineffective for failing to anticipate a change in the law.
See Wright v. Hopper, 169 F.3d 695, 707–08 (11th Cir. 1999); Spaziano v. Singletary, 36 F.3d
1028, 1039 (11th Cir. 1994) (“We have held many times that reasonably effective representation
cannot and does not include a requirement to make arguments based on predictions of how the
law may develop.” (alteration and quotation marks omitted)).
6
Because Delgado’s sentences do not exceed the statutory maximum, we have no
occasion to address the actual-innocence exception as applied to a defendant who received a
sentence above the statutory maximum. Cf. Hunter v. United States, 130 S. Ct. 1135 (2010)
(mem.) (vacating judgment and remanding for consideration of whether the § 2255 movant
showed a due process violation where the district court erroneously applied a statutory
enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and imposed
a sentence above the statutory maximum applicable absent the ACCA enhancement).
8