             Case: 12-15100     Date Filed: 07/24/2014   Page: 1 of 10


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-15100
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 1:12-cv-20370-MGC,
                            1:10-cr-20488-MGC-5


JUAN ENRIQUE RODRIGUEZ,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (July 24, 2014)

Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Juan Enrique Rodriguez, a federal prisoner proceeding pro se, appeals the

district judge’s denial of his habeas petition under 28 U.S.C. § 2255. We affirm.
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                                I. BACKGROUND

A. Prior Convictions

      On June 14, 1993, Rodriguez with counsel pled guilty to cocaine trafficking,

in violation of Florida Statute § 893.135(1)(b). He was sentenced to 15 years of

imprisonment. Pursuant to his plea agreement, upon surrender, his sentence would

be mitigated to the mandatory minimum under § 893.135(1)(b), 5 years of

imprisonment. On July 2, 1993, Rodriguez appeared before a state judge without

counsel and received the mitigated sentence.

      In 1997, Rodriguez was convicted of conspiracy to possess with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was

sentenced to 135 months of imprisonment. His sentence subsequently was

reduced to 90 months of imprisonment, pursuant to the government’s Federal Rule

of Criminal Procedure 35 motion.

B. Conviction and Sentence

      In 2009, the Bureau of Alcohol, Tobacco and Firearms and the Miami-Dade

Police Department conducted a year-long investigation into the narcotics-

trafficking activities of Rodriguez’s co-defendant, Jose Enriquez. During that

investigation, Rodriguez was intercepted 182 times on court-authorized wiretapped

calls and participated in four cocaine transactions that involved a total of

approximately 1.5 kilograms of cocaine. Rodriguez and 15 co-defendants were


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indicted in June 2010. Rodriguez was charged with conspiracy to possess with

intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A)(ii), 846 (Count 1); possession with intent to distribute 500 or

more grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii) (Counts

9 and 13); possession with intent to distribute 5 or more grams of cocaine base, in

violation of 21 U.S.C. § 841(b)(1)(A), (b)(1)(B)(iii) (Count 16); and possession

with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)

(Count 33).

      In 2010, Rodriguez pled guilty to Count 33, possession with intent to

distribute cocaine. In January 2011, the district judge sentenced Rodriguez to 151

months of imprisonment, based on his status as a career offender, under U.S.S.G.

§ 4B1.1. Rodriguez’s career-offender status resulted from his two prior controlled-

substance offenses, including the 1993 Florida cocaine-trafficking conviction.

C. Habeas Petition

      In 2012, Rodriguez filed a habeas petition under 28 U.S.C. § 2255 and

alleged his counsel’s ineffective assistance for failing to challenge his career-

offender status, because his 1993 conviction was uncounseled and did not qualify

as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). Rodriguez alleged

he had pled guilty in the 1993 Florida case in return for being released on bond

until he finished repairing his home, which had been damaged by a hurricane. The


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state had agreed to this arrangement on the condition that the state judge impose a

15-year imprisonment sentence, which would be mitigated to 5 years, when

Rodriguez surrendered to serve his sentence. After his release on bond,

Rodriguez’s counsel obtained an extension of his surrender date to July 2, 1993.

Rodriguez represents he returned to state court on July 2, 1993, without counsel,

whom he had been unable to reach, and intended to seek an additional extension.

Rodriguez asserted he had intended to withdraw his guilty plea if the state judge

denied a second extension. Because his counsel was not present, the state judge

imposed a 5-year sentence and remanded Rodriguez to custody. Rodriguez

contended he had been denied counsel at a critical stage of the state proceedings.

Because his counsel in his federal prosecution failed to argue the uncounseled state

conviction could not be used as a basis for a career-offender enhancement,

Rodriguez argued his counsel was ineffective.

      Rodriguez also argued his state conviction did not qualify as a “controlled

substance offense” under the career-offender guidelines. He contended § 893.135

encompassed conduct, such as cocaine possession, that did not satisfy the U.S.S.G.

§ 4B1.2(b) definition of “controlled substance offense.” Rodriguez submitted a

copy of the state information in his 1993 Florida case, which alleged Rodriguez

“did knowingly sell, manufacture or deliver and/or was knowingly in actual or

constructive possession of” cocaine, in violation of § 893.135(1)(b). R1-8 at 15.


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He additionally argued his counsel rendered ineffective assistance by failing to

object to his career-offender enhancement.

       A magistrate judge issued a Report and Recommendation (“R&R”),

recommending Rodriguez’s § 2255 motion be denied. In his R&R objections,

Rodriguez argued, for the first time, he had pled guilty to buying cocaine, but not

to possessing it, in his 1993 Florida case. The district judge adopted the R&R and

denied Rodriguez’s § 2255 motion. The judge granted a certificate of appealability

(“COA”) for Rodriguez’s claim that his counsel rendered ineffective assistance by

failing to object to his career-offender status, because his prior state conviction had

been uncounseled and did not qualify as a controlled-substance offense under the

career-offender Guidelines. This court denied Rodriguez’s request to enlarge the

scope of the COA. On appeal, Rodriguez argues the district judge erroneously

denied his claims that his counsel rendered ineffective assistance by failing to

object to his classification as a career offender on multiple grounds. 1




       1
          By failing to make any arguments on appeal to support his claim that his state surrender
proceeding constituted a “resentencing” entitling him to counsel, Rodriguez has abandoned this
issue. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (recognizing
that, although pro se briefs are to be construed liberally, a pro se litigant who offers no
substantive argument on an issue in his initial brief abandons that issue on appeal). Because they
are outside the scope of the COA, Rodriguez’s arguments that his counsel was ineffective for
failing to file a Federal Rule of Criminal Procedure 35(a) motion to correct sentence, to file an
appeal, and to advise Rodriguez to file an appeal are not properly before us. See Jordan v. Sec’y,
Dep’t of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007) (recognizing the law of this circuit
prohibits consideration of any issue not specified in the COA).
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                                II. DISCUSSION

      We review de novo a claim of ineffective assistance of counsel, which is a

mixed question of fact and law. Payne v. United States, 566 F.3d 1276, 1277 (11th

Cir. 2009) (per curiam). To establish ineffective assistance of counsel, Rodriguez

must show his (1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984). Prejudice is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. Id. at 694,

104 S. Ct. at 2068. The petitioner bears the burden of proof on both prongs of an

ineffective-assistance claim. Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.

2001).

      To qualify as a career offender, a defendant must have at least two prior

felony convictions for either a crime of violence or a controlled-substance crime.

U.S.S.G. § 4B1.1(a)(3). A sentencing court cannot ignore or discount a prior

conviction that has not been invalidated in a prior proceeding, unless there was an

unwaived absence of counsel in the proceedings resulting in that conviction.

United States v. Phillips, 120 F.3d 227, 231 (11th Cir. 1997). In § 4B1.1,

“controlled substance offense” is defined as:

      an offense under federal or state law, punishable by imprisonment for
      a term exceeding one year, that prohibits the manufacture, import,
      export, distribution, or dispensing of a controlled substance . . . or the


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      possession of a controlled substance . . . with intent to manufacture,
      import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b).

      Florida’s cocaine-trafficking statute provides:

      Any person who knowingly sells, purchases, manufactures, delivers,
      or brings into [Florida], or who is knowingly in actual or constructive
      possession of, 28 grams or more of cocaine, . . . or of any mixture
      containing cocaine, but less than 150 kilograms of cocaine or any such
      mixture, commits a felony of the first degree, which felony shall be
      known as “trafficking in cocaine” . . . .

Fla. Stat. § 893.135(1)(b)1. Under the version of § 893.135(1)(b) in effect at the

time of Rodriguez’s arrest in his 1993 Florida case, a 5-year mandatory minimum

sentence applied to violations of § 893.135(1)(b) involving at least 200, but less

than 400, grams of cocaine. Id. § 893.135(1)(b)1.b. (1992).

      We have held § 893.135(1)(b) necessarily infers an intent to distribute once

a defendant possesses 28 grams or more of cocaine, and that a prior conviction for

cocaine trafficking by possessing between 200 and 400 grams of the drug qualified

as a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). United States v. James, 430 F.3d 1150, 1155-56 (11th Cir. 2005). We

subsequently determined, where a court is unable to determine the statutorily

prohibited act for which a defendant previously was convicted under

§ 893.135(1)(b), it must be assumed the prior conviction involved only the

purchase of a controlled substance, the least prohibited act under the statute.


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United States v. Shannon, 631 F.3d 1187, 1189 (11th Cir. 2011) (holding the

district judge erred by sentencing the defendant as a career offender based on a

prior § 893.135 conviction, because it could not be determined whether the prior

conviction merely involved buying cocaine, which would not qualify as a

“controlled substance offense” under § 4B1.2(b)). Had the district judge been able

to determine the prior § 893.135 conviction involved possessing cocaine—as

opposed to buying, which did not necessarily entail possessing—we recognized the

judge would have been entitled to infer an intent to distribute. See id. at 1189-90

& n.3 (citing James, 430 F.3d at 1152-56).

      Rodriguez does not dispute he was represented by counsel, when he pled

guilty to and was sentenced for violating § 893.135(1)(b). He has cited no

authority for the proposition that a prior conviction may not form the basis for a

career-offender enhancement based solely on the absence of counsel during a

surrender proceeding in which a state judge mitigates a previously imposed

sentence in accordance with an existing plea agreement.

      Regardless of whether he would have been entitled to counsel to assist with

a motion to withdraw his guilty plea in state court, Rodriguez has not alleged he

sought to extend the deadline for his surrender or informed the state judge he

wanted to withdraw his plea. Nor has Rodriguez alleged he told his federal

defense counsel he had intended to withdraw his plea if the state judge did not


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grant his request for an extension. Therefore, he has not met his burden of

showing either that his federal defense counsel performed deficiently by failing to

object to the use of his § 893.135 conviction as a basis for his career-offender

enhancemen, because it was “uncounseled,” or that such an objection would have

yielded a different result. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064,

2068; Johnson, 256 F.3d at 1176.

      Rodriguez also has not shown his § 893.135 conviction did not satisfy the

§ 4B1.2(b) definition of “controlled substance offense.” He has alleged no facts to

support his allegation that his § 893.135 conviction was for buying but not

possessing cocaine. He further has not alleged any facts suggesting his counsel

should have known he was convicted of buying but not possessing cocaine. The

charging document in his 1993 Florida case did not allege Rodriguez had bought

cocaine; instead, it alleged Rodriguez “did knowingly sell, manufacture or deliver

and/or was knowingly in actual or constructive possession of” cocaine. R1-8 at 15.

Similarly, nothing in the state judgment or sentencing document suggests the

conviction involved buying cocaine but not possessing it.

      The district judge was entitled to infer an intent to distribute from the

amount of cocaine required to establish a violation of § 893.135. See James, 430

F.3d at 1155-56 (recognizing a violation of Florida’s drug trafficking statute, Fla.

Stat. § 893.135, constitutes a predicate offense because the “statute necessarily


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infers an intent to distribute [cocaine] once a defendant possesses 28 grams or

more”); see also Shannon, 631 F.3d at 1189-90 & n.3 (stating a violation of

Florida’s drug law is not a “controlled substance offense” under the Guidelines if

the conviction is for the “purchase” of a controlled substance with the intent to

distribute). Specifically, the judgment in his 1993 Florida case showed

Rodriguez’s mitigated 5-year sentence was the mandatory-minimum sentence

under § 893.135(1). Under the then-current version of § 893.135(1), a 5-year,

mandatory-minimum-imprisonment sentence applied to violations of

§ 893.135(1)(b) involving at least 200 but less than 400 grams of cocaine. Fla.

Stat. § 893.135(1)(b)1.b. (1992). Consequently, Rodriguez has not met his burden

of showing either his federal defense counsel performed deficiently by failing to

argue his § 893.135 conviction did not qualify as a “controlled substance offense”

under § 4B1.2(b) or, had his counsel made that argument, the result would have

been different. See Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068;

Johnson, 256 F.3d at 1176.

      AFFIRMED.




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