United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e),
Bruce Lloyd has filed a 28 U.S.C. § 2255 motion
asserting that counsel was ineffective for failing to argue
that he was improperly sentenced under the Armed Career
Criminal Act (ACCA). Docs. 39 & 40; see docs. 1
(indictment); 26 (plea agreement); 35 (judgment for 188
months' incarceration). He seeks to neutralize his
enhanced sentence, arguing that his prior convictions were
improperly used to brand him an armed career criminal. He
also contends his counsel was ineffective for failing to so
argue at sentencing, and that she failed to appeal his
sentence despite his asking. Docs. 39 & 40. The
Government opposes. Doc. 45.
ACCA imposes an enhanced sentence upon § 922(g)
felon-with-a-gun offenders who have at least three prior
convictions “for a violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1). Plain vanilla,
felon-in-possession convictions fetch a maximum 10 year
sentence, see 18 U.S.C. § 922(a)(2), while the
ACCA enhancement mandates a 15 year minimum (and a maximum of
life). 18 U.S.C. § 924(e)(1).
pled guilty to possession of a firearm by a convicted felon
in violation of 18 U.S.C. § 922(g). Doc. 26. His
Presentence Investigative Report (PSR) deemed him an armed
career criminal, based upon two prior convictions for
possession with intent to distribute and for the sale of
marijuana and one prior conviction for robbery. See
PSR at ¶¶ 34, 39 & 40. Counsel initially
raised, but later withdrew after further review of the
record, a contention that Lloyd's robbery conviction
under O.C.G.A. § 16-8-40 did not qualify as a
“violent crime” for ACCA enhancement.
See PSR, Addendum; doc. 42 (sentencing hearing
transcript) at 6-8 (noting the admitted factual basis of his
robbery conviction involved the “use of force, ”
so counsel was forced to withdraw her objection). Counsel
also argued that Lloyd's two marijuana convictions, while
“serious drug offenses” for ACCA enhancement
purposes, should be considered less serious than if they had
been for “crack, heroin, [or] cocaine.”
Id. at 6. The Court, based on counsel's
argument, sentenced Lloyd at the lowest end of the advisory
guidelines, to run consecutively to any sentence imposed on
pending state charges. Id. at 10 (sentencing movant
to 188 months' imprisonment). Lloyd did not appeal his
sentence. See doc. 36 (signed notice of
post-conviction consultation, affirming movant's decision
not to file an appeal after counsel fully explained the
consequences of doing so).
Three ACCA Predicates i. Robbery
was convicted of robbery in violation of O.C.G.A. §
16-8-40. PSR at ¶ 34; doc. 45-1 (state criminal court
plea hearing transcript) at 2-11. He disputes that the crime
qualified as a “violent felony” for
ACCA-enhancement at sentencing. Docs. 39 & 40. ACCA
violent felonies must either (1) have “as an element
the use, attempted use, or threatened use of physical force
against the person of another” (elements clause), or
(2) be “burglary, arson, or extortion, [or] involve [ ]
the use of explosives” Movant and counsel signed and
witnessed one another's signatures on May 19, 2016. Doc.
36. In so doing, counsel certified (and Lloyd agreed) that
she had met with him, explained the appellate process and his
rights to appeal his conviction and sentence, advised him of
the advantages and disadvantages of filing an appeal, and
thoroughly inquired of him about his interest in appealing.
Id. After this consultation, Lloyd “decided
not to file an appeal, and [his] attorney has explained to
[him] the consequences of failing to do so.”
Id. at 4. Apparently forgetting that he signed this
form, Lloyd now contends that he actually asked counsel to
appeal and that she failed or refused to do so. Doc. 39 at 7.
Notice defeats Lloyd's § 2255 claim. Doc. 39 at 7.
It demonstrates instead that Lloyd expressly instructed
counsel not to file an appeal. Id.; see
also doc. 42 (sentencing transcript) at 12-14 (advising
Lloyd of his right to appeal and informing him of his ability
to request that “the clerk of court [ ] prepare a
notice of appeal for [him] . . . upon [his] written
request.”). In the face of nothing more than
self-serving conclusions, movant will not now be heard to
declare differently. Cf. Winthrop-Redin v. United
States, 767 F.3d 1210, 1216 (11th Cir. 2014) (“[A]
prisoner has everything to gain and nothing to lose from
filing a collateral attack upon his guilty plea. . . .
[Consequently, ] the representations of the defendant . . .
constitute a formidable barrier in any subsequent collateral
proceedings.”) (quoting Blackledge v. Allison,
431 U.S. 63, 71-74 (1977)). (enumerated (property) crimes
clause). 18 U.S.C. § 924(e)(2)(B)(i); see Taylor v.
United States, 495 U.S. 575, 585-97 (1990) (reviewing
legislative history of the ACCA). Felonies that previously
qualified under the residual clause -- those that
“otherwise involve[d] conduct that presents a serious
potential risk of physical injury to another” -- no
longer count. Johnson v. United States, 576 U.S. __,
135 S.Ct. 2551, 2557 (2015).
in Georgia can be committed in one three of ways: by use of
force; by intimidation, threat or coercion, or placing a
person in fear of immediate bodily injury; or by
“sudden snatching.” O.C.G.A. § 16-8-40.
Given the disjunctive listing of statutory elements, Georgia
robbery cannot categorically qualify as a violent felony
following Johnson. In re: Herman McClouden, No.
16-13525-J (11th Cir. July 12, 2016), copy available at
McClouden v. United States, 2016 WL 5109530 at *4
(S.D. Ga. Sept. 20 2016). Instead, it must be analyzed under
the modified categorical approach. Mathis v. United
States, 136 S.Ct. 2243, 2249 (2016); Descamps v.
United States, 570 U.S. __, 133 S.Ct. 2276, 2281 (2013)
(the modified categorical approach is used when a statute is
“divisible, ” such that it “sets out one or
more elements of the offense in the alternative”).
by intimidation occurs when “[a] person . . . with the
intent to commit theft . . . takes property of another from
the person of another or the immediate presence of another .
. . by intimidation, by the use of threat or coercion, or by
placing such person in fear of immediate serious bodily
injury to himself or to another . . . .” O.C.G.A.
§ 16-8-40(a)(2). “A conviction for robbery by
intimidation . . . requires proof that the theft was attended
with such circumstances of terror -- such threatening by word
or gesture, as in common experience, are likely to create an
apprehension of danger, and induce a [person] to part with
his property for the safety of his person.” Smith
v. State, 247 Ga.App. 173 (2000). On the state
statute's elements, that's a clear use of the
“threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(1)(2)(B)(i);
Brown v. United States, WL 7013531 at *3 (S.D. Ga.
Nov. 7, 2016) (citing Cooks v. United States, 2015
WL 7069665 at *2 (S.D. Ga. Nov. 13, 2015) (“[R]obbery
by intimidation contains as an element a threat, implicit or
overt, which would likely create fear for the safety of the
person being threatened. Although this definition does not
include the word force, the natural corollary of an act that
creates fear for the safety of a person is the threatened use
of physical force against that
person.”)). See Hires, 825 F.3d at 1303
(“because [Brown's] convictions qualified under the
elements clause, that settles the matter for
Johnson-residual clause purposes regardless of
whether those convictions would count were [he] being
guilty plea transcript reveals that Lloyd admitted the way he
committed the robbery constituted “robbery by
intimidation.” Doc. 45-1 at 2-11; see United States
v. Diaz-Calderone, 716 F.3d 1345, 1350 (11th Cir. 2013)
(to establish the crime defendant was convicted of
committing, the court may consult a transcript of the plea
colloquy to determine “the factual basis for the plea
which was confirmed by the defendant”). Here, the
prosecutor proffered as the factual basis for movant's
plea that Lloyd and his codefendant Frazier had approached
the victim; Frazier held the victim at gunpoint, robbed him
of $20, then forced him to drive to an ATM; then Frazier
handed the gun to Lloyd to hold while he aided the victim in
withdrawing money from the ATM. Doc. 45-1 at 2-5. Lloyd was
later found with the gun, and eventually admitted under
questioning that he had indeed been involved in the robbery.
Id. at 5-6. Defense counsel affirmed that the
factual recitation was “our understanding, Your Honor,
” and Lloyd pled “guilty” to, inter
alia, the charge of “robbery.” Id.
at 7; see Diaz-Calderone, 716 F.3d at 351
(counsel's admission of the factual basis for a plea
“established a sufficient basis for the court's
finding of fact that [movant] was indeed admitting that he
did” what counsel acknowledged he did).
forth by the Government, “defense counsel admitted that
the factual basis for Lloyd's guilty plea to robbery
involved holding the victim at gunpoint. . . . Robbing a
victim at gunpoint necessarily ‘plac[es] such person in
fear of immediate serious bodily injury' and so
constitutes robbery by intimidation under O.C.G.A §
16-8-40(a)(2).” Doc. 45 at 9. That counts as one ACCA
predicate violent felony. See generally Green v. United
States, 2017 WL 819680 at *5 (S.D. Ga. Mar. 1, 2017)
(Georgia robbery by intimidation remains ACCA predicate
violent felony); Brown v. United States, 2016 WL
7013531 at *3 (S.D. Ga. Nov. 7, 2016) (same).