United States District Court, N.D. Georgia, Atlanta Division
FREDERICK T. ANDERSON, Movant,
UNITED STATES OF AMERICA, Respondent.
TO VACATE 28 U.S.C. § 2255
D. EVANS, UNITED STATES DISTRICT JUDGE.
matter is currently before the Court on Frederick T.
Anderson's objections [Doc. 71] to the Final Report and
Recommendation ("R&R") issued by Magistrate
Judge Russell G. Vineyard [Doc. 68], which recommends that
Anderson's 28 U.S.C. § 2255 motion be denied. In
reviewing a Magistrate Judge's Report and Recommendation,
the district court "shall make a de novo determination
of those portions of the report or specified proposed
findings or recommendations to which objection is made."
28 U.S.C. § 636(b)(1). "Parties filing objections
to a magistrate's report and recommendation must
specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by
the district court." United States v. Schultz.
565 F.3d 1353, 1361 (11th Cir. 2009) (per curiam) (quoting
Marsden v. Moore. 847 F.2d 1536.1548 (11th Cir.
1988)) (internal quotation marks omitted). Absent objection,
the district judge "may accept, reject, or modify, in
whole or in part, the findings and recommendations made by
the magistrate judge, " 28 U.S.C. § 636(b)(1), and
"need only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation, " Fed.R.Civ.P. 72, advisory committee
note, 1983 Addition, Subdivision (b). Further, "the
district court has broad discretion in reviewing a magistrate
judge's report and recommendation" - it "does
not abuse its discretion by considering an argument that was
not presented to the magistrate judge" and "has
discretion to decline to consider a party's argument when
that argument was not first presented to the magistrate
judge." Williams v. McNeil, 557 F.3d 1287,
1290-92 (11th Cir. 2009).
federal grand jury in the Northern District of Georgia
returned a five-count indictment against Anderson and
co-defendants David Starks and Deshawn Antoine Mackey,
charging them in Count One with conspiring to commit Hobbs
Act robbery, in violation of 18 U.S.C. § 1951(a); in
Count Two with an attempted Hobbs Act robbery of the business
Duty Free America, Inc., in violation of § 1951(a); in
Count Three with carjacking, in violation of 18 U.S.C. §
2119; in Count Four with an attempted Hobbs Act robbery of
the business J&D Trucking, in violation of § 1951
(a); and in Count Five with using and brandishing a firearm
during and in relation to the attempted robbery of J&D
Trucking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
[Doc. 1]. Represented by Allison Cobham Dawson
("Dawson") of the Federal Public Defender Program,
Inc., Anderson entered a negotiated guilty plea to Counts
Three, Four, and Five. [Docs. 11; 34; 41]. At the sentencing
hearing, the Court determined that Anderson's base
offense level was 29 and his criminal history category was IV
and that adding the 84-month mandatory consecutive sentence
for Count Five resulted in a total guideline range of 205 to
235 months of imprisonment. [Doc. 58 at 30-31]. The Court
imposed a total sentence of 235 months of imprisonment, the
high end of the guideline range. [Id. at 45-46; Doc.
represented by Dawson, Anderson appealed, arguing that: (1)
the government breached the plea agreement; (2) the Court
erred by failing to group Counts Three and Four pursuant to
U.S.S.G. § 3D1.2; and (3) his sentence was procedurally
and substantively unreasonable. Br. of Appellant at 2, 14-43
(Feb. 5, 2015). United States v. Anderson. 641
Fed.Appx. 937 (11th Cir. 2016) (per curiam) (14-13979), 2015
WL 628924, at *2, 14-43. On February 3, 2016, the United
States Court of Appeals for the Eleventh Circuit affirmed
Anderson's convictions and sentence. Anderson.
641 Fed.Appx. at 949.
timely filed this pro se § 2255 motion, arguing that:
(1) the sentencing guidelines unconstitutionally require a
mandatory minimum sentence even though no such minimum is
statutorily required for Anderson's offenses; (2) the
probation officer miscalculated his base offense level as 29,
when it should have been 28; (3) his conviction for using and
brandishing a firearm during a crime of violence (Count Five)
should be vacated because his underlying conviction for
attempted armed robbery (Count Four) is not a violent crime;
(4) his constitutional rights were violated when the Court
found that he "brandished" a firearm based on facts
not admitted by him or submitted to the jury, in violation of
Alleyne v. United States, 133 S.Ct. 2151 (2013); (5)
Count Five should be dismissed for failure to state an
offense and for lack of subject matter jurisdiction because
§ 924(c) merely provides a penalty, not an independent
offense, and life imprisonment is not a "valid statutory
maximum"; (6) the Court erred in accepting
Anderson's plea to Count Four when he refused to admit a
key element, i.e., that he was part of a plan to aid and abet
a robbery; and (7) he received ineffective assistance of
counsel when counsel failed to raise the issues presented in
grounds one through six in this Court or on direct appeal.
[Doc. 62 at 3-25]. The government responds that grounds one
through six are procedurally defaulted because Anderson
failed to raise them on direct appeal and that ground seven
lacks merit. [Docs. 64; 66]. Anderson replies,
arguing that his grounds for relief are not procedurally
barred and further reasserting their merits. [Doc. 67].
Magistrate Judge found that grounds one through six are
procedurally defaulted and that ground seven lacks merit.
[Doc. 68 at 6-20]. Notably, as to Anderson's claim that
Dawson provided him ineffective assistance by not objecting
when the probation officer erred in recalculating
Anderson's base offense after the Court sustained an
objection to an enhancement during the sentencing hearing,
the Magistrate Judge determined that Dawson performed
unreasonably by not alerting the Court to this error, but
that Anderson had not met his burden to show that the error
prejudiced him. [Id. at 13-15]. In his objections,
Anderson reasserts the merits of each of his ineffective
assistance of counsel claims and contends that, had counsel
objected when the probation officer miscalculated
Anderson's base offense level at sentencing, the Court
would not have imposed a sentence above 221 months of
imprisonment, i.e., the high end of the correct guideline
range. [Doc. 71].
careful consideration, the Court SUSTAINS
Anderson's objection that Dawson's failure to alert
the Court to the probation officer's miscalculation at
sentencing resulted in prejudice. It is likely that, but for
this error, the Court would not have imposed a sentence above
the high end of the correct guideline range. However, the
Court finds that the Magistrate Judge's factual and legal
conclusions with respect to Anderson's remaining grounds
for relief were correct and that Anderson's objections as
to those grounds have no merit.
the Court ADOPTS, in part, and
REJECTS, in part, the R&R [Doc. 68].
Specifically, the Court GRANTS, in part,
this § 2255 motion [Doc. 62] as to Anderson's claim
that Dawson provided him ineffective assistance by failing to
object to the probation officer's miscalculation of his
base offense level at sentencing. The Court
DENIES all of Anderson's remaining
grounds for relief and DECLINES to issue a
certificate of appealability as to those grounds. Anderson
shall be resentenced. The date and time of resentencing shall
be set by separate order.