             Case: 14-10373    Date Filed: 09/18/2014   Page: 1 of 11


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-10373
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:07-cr-60143-JIC-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

REGINALD WARE,

                                                             Defendant-Appellant.

                          ________________________

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

                              (September 18, 2014)

Before WILSON, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:

      Reginald Ware, proceeding pro se, appeals the district judge’s denial of his

post-conviction motion for a writ of mandamus to compel the government to
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specifically perform its obligation under Ware’s 2007 plea agreement to

recommend a sentence within Ware’s advisory Sentencing Guidelines range. We

affirm.

                                I. BACKGROUND

A. Underlying Plea and Sentencing

      In June 2007, a federal grand jury indicted Ware for possession with intent

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

§ 841(a)(1), (b)(1)(A) (Count 1); possession with intent to distribute crack cocaine,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 2); and possession with

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

(Count 3). In October 2007, Ware signed a plea agreement, in which he agreed to

plead guilty to Count 1, and the government agreed to seek the dismissal of Counts

2 and 3 at sentencing. The agreement further provided:

      The United States and the defendant agree that, although not binding
      on the probation office or the court, they will jointly recommend that
      the court impose a sentence within the advisory sentencing guideline
      range produced by application of the Sentencing Guidelines.
      Although not binding on the probation office or the court, the United
      States and the defendant further agree that, except as otherwise
      expressly contemplated in this Plea Agreement, they will jointly
      recommend that the court neither depart upward nor depart downward
      under the Sentencing Guidelines when determining the advisory
      sentencing guideline range in this case.

R. at 179.



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      Ware also agreed to cooperate fully with the government, in return for which

the government would consider whether his cooperation warranted a motion for a

sentence reduction based on substantial assistance, under U.S.S.G. § 5K1.1,

Federal Rule of Criminal Procedure 35, or both. Ware’s plea agreement contained

a sentence appeal waiver, under which Ware agreed to waive his rights (1) to

appeal his sentence, unless it exceeded the statutory maximum or the Guidelines

range established by the district judge at sentencing, or the government appealed;

and (2) to collaterally attack his sentence under 28 U.S.C. § 2255.

      During Ware’s plea proceeding, he testified he had understood and signed

his plea agreement, which he had fully discussed with his attorney. The district

judge reviewed the sentence appeal waiver, and Ware similarly testified he

understood the appeal waiver and had discussed it with his attorney. The district

judge found Ware had “knowingly, intelligently, and voluntarily waive[d] his right

to appeal either directly or collaterally th[e] court’s sentence.” R. at 371-72. Ware

pleaded guilty to, and the district judge adjudged him guilty of, Count 1.

      Ware’s presentence investigation report (“PSI”), which applied the

November 2007 Guidelines Manual, calculated a base offense level of 32, under

U.S.S.G. § 2D1.1(a)(3), because the offense involved the equivalent of a total of

1,159.07 kilograms of marijuana. The probation officer determined Ware was a

career offender, under U.S.S.G. § 4B1.1, based on prior Florida convictions for


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armed robbery, aggravated battery, and escape. Because the statutory maximum

penalty for his crime was a life sentence, the PSI assigned an offense level of 37,

under § 4B1.1(b).

      The PSI calculated 11 criminal-history points and a criminal history

category of IV, based on his 3 prior convictions, as well as prior Florida

convictions for aggravated assault, battery on a law enforcement officer, and

resisting an officer with violence. Because Ware was a career offender, the PSI

assigned a criminal history category of VI, under § 4B1.1. The PSI also reported

unscored prior convictions for cocaine trafficking, carrying a concealed firearm,

resisting arrest with violence, and armed robbery, as well as several traffic

offenses.

      Based on an offense level of 37 and a criminal history category of VI, the

PSI calculated a Guidelines range of 360 months to life imprisonment. Ware was

subject to a statutory term of 10 years to life imprisonment. See 21 U.S.C.

§ 841(b)(1)(A). Ware initially objected to the accuracy of his criminal history as

reported in the PSI. During his February 2008 sentencing hearing, however, he

withdrew those objections and explained, through counsel: “[W]e verified

everything and it’s fine.” Sentencing Hr’g at 3 (Feb. 6, 2008). The district judge

granted Ware a 2-level acceptance-of-responsibility reduction under U.S.S.G.

§ 3E1.1 and calculated a total offense level of 35, a criminal history category of


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VI, and a resulting Guidelines range of 292-365 months of imprisonment. The

judge sentenced Ware to 292 months of imprisonment, to be followed by 5 years of

supervised release, and dismissed Counts 2 and 3. Ware did not appeal his

conviction judgment.

B. Post-Conviction Motions, 2009-2012

      In February 2009, Ware filed a counseled motion to vacate, under 28 U.S.C.

§ 2255. He argued the district judge improperly had sentenced him as a career

offender, because all of his predicate convictions had the same arrest and

sentencing date, and the sentences for each ran concurrently. He also asserted

none of his remaining convictions qualified as career-offender predicates. Ware

further contended the government had breached his plea agreement by failing to

file a motion for a sentence reduction based on substantial assistance.

      The government conceded Ware’s PSI improperly had based his career-

offender status on prior convictions that had not been separated by intervening

arrests, and which had been consolidated for sentencing. The government argued

Ware’s career-offender claim was barred by his appeal waiver, was not cognizable

in a § 2255 proceeding, and was procedurally barred because of Ware’s failure to

raise it on direct appeal. The government also contended Ware qualified as a

career offender, based on several other convictions reported in his PSI, and Ware’s

substantial-assistance claim was meritless.


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      The district judge denied Ware’s § 2255 motion in May 2009. Regarding

Ware’s career-offender claim, the judge concluded (1) Ware had waived his right

to challenge his sentence collaterally; and (2) regardless, the claim was

procedurally barred and was not cognizable on collateral review. The judge further

determined the government had not breached Ware’s plea agreement because the

government had retained the sole discretion to decide whether to file a substantial-

assistance motion. Both the district judge and a judge of this Court denied a

certificate of appealability.

      In June 2009, Ware filed a pro se motion for specific performance of his plea

agreement, under 28 U.S.C. § 1361 and Federal Rule of Criminal Procedure

11(e)(3) (2001). He sought (1) a writ of mandamus compelling the government to

fully evaluate his post-sentencing cooperation to determine in good faith whether a

sentence reduction was warranted, and (2) a reduced sentence of no more than 140

months. The district judge denied Ware’s motion, because the judge previously

had addressed the same request in Ware’s § 2255 proceeding, and Ware had not

alleged an unconstitutional motive by the government in failing to move for a

sentence reduction. Ware did not appeal.

      In September 2011, Ware filed a pro se “Motion for Performance of

Sentence Based on Substantial Assistance,” in which he argued the government

had refused to move for a sentence reduction for reasons that were not rationally


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related to a legitimate government purpose. ROA at 389. The district judge

denied Ware’s motion, because the judge previously had addressed the same claim

several times, and Ware had not alleged an unconstitutional motive by the

government. We dismissed Ware’s appeal of this order for failure to prosecute in

March 2012. United States v. Ware, No. 12-10516 (11th Cir. Mar. 1, 2021).

      In June 2012, Ware filed a pro se motion to withdraw his guilty plea,

because the government had breached his plea agreement by failing to make the

extent of his cooperation known to the judge at sentencing and by failing to move

for a sentence reduction. The district judge denied Ware’s motion, since he had

not alleged an unconstitutional motive by the government. We affirmed in April

2013. United States v. Ware, 517 F. App’x 830 (11th Cir. 2013) (per curiam).

C. Motion to Compel Specific Performance

      In August 2013, Ware filed his pro se “Motion to Compel . . . Specific

Performance of Plea Agreement,” under 28 U.S.C. § 1361, which is at issue on

appeal. ROA at 592. He asserted his PSI incorrectly had designated him as a

career offender based on three prior convictions that were not separated by

intervening arrests. Moreover, Ware argued the PSI incorrectly scored those

convictions in determining his criminal history category. As a result, his non-

career-offender Guidelines range should have been 121-151 months of

imprisonment, based on an offense level of 30, 6 criminal-history points, and a


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criminal history category of III. He argued, the government had breached his plea

agreement by recommending that he be sentenced within his career-offender

Guidelines range, which was an upward departure from his correct Guidelines

range. Ware further contended the government’s failure to object to the PSI barred

it from seeking to rely on other convictions to support his career-offender status.

Finally, Ware argued the district judge had the authority to issue a writ of

mandamus to compel the government to act under § 1361, since Ware had a clear

right to relief, the government had a duty to fulfill its obligations under his plea

agreement, and Ware had no other adequate remedy because of his appeal waiver.

He asked the judge to order specific performance of his plea agreement or allow

him to withdraw his guilty plea.

      The district judge denied Ware’s motion without requiring a response from

the government. The judge concluded both this Court and the district judge

previously had addressed the issues raised in Ware’s motion. The judge again

determined Ware had failed to allege a constitutionally impermissible

consideration had motivated the government not to file a substantial-assistance

motion. The judge further concluded Ware’s request for mandamus relief under

§ 1361 did not cure this deficiency. The judge did not address Ware’s career-

offender claim.




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      Ware argues pro se on appeal the district judge abused his discretion by

denying Ware’s motion to compel specific performance. Based on the

government’s admissions during his § 2255 proceeding, Ware argues his

applicable Guidelines range was 168-210 months of imprisonment, rather than the

higher range relied on by the judge during his sentencing. Under the plain

language of his plea agreement, he asserts he has a clear right to have the

government recommend a sentence within the lower range, and the government

has a clear duty to act to do so. Ware argues, he has no other adequate remedy

because of his appeal waiver, which did not relieve the government of its

obligation to recommend a sentence within his applicable Guidelines range.

                                 II. DISCUSSION

      Because Ware sought relief under § 1361, his motion to compel specific

performance is a petition for a writ of mandamus, and the district judge’s denial of

the petition is reviewed for abuse of discretion. See 28 U.S.C. § 1361; Kerr v. U.S.

Dist. Ct., N.D. Cal., 426 U.S. 394, 403, 96 S. Ct. 2119, 2124 (1976). Federal

district judges have original jurisdiction over any mandamus action “to compel an

officer or employee of the United States or any agency thereof to perform a duty

owed to” the party seeking relief. 28 U.S.C. § 1361. “Mandamus is an

extraordinary remedy available only in the clearest and most compelling of cases.”

Serrano v. U.S. Att’y Gen., 655 F.3d 1260, 1263 (11th Cir. 2011) (per curiam).


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Mandamus is appropriate only if (1) the party seeking relief has a clear right to the

relief requested; (2) the opposing party has a clear duty to act; and (3) no other

adequate remedy is available. See id. The party seeking mandamus has the burden

of showing “his right to the writ is clear and indisputable.” Id. We may affirm for

any reason supported by the record, even if not relied upon by the district judge.

United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012).

      Regardless of the district judge’s failure to address Ware’s career-offender

argument, the judge did not abuse his discretion in denying Ware’s mandamus

petition. Ware failed to show both a clear right to the relief requested and that the

government had a duty to act. See id.; Serrano, 655 F.3d at 1263. Ware’s plea

agreement obligated the government to recommend a sentence “within the

advisory sentencing guideline range produced by application of the Sentencing

Guidelines.” ROA at 179. The government did so during Ware’s sentencing,

based on the Guidelines range as calculated by the district judge, to which neither

party objected. Ware also cannot show no other adequate remedy was available,

since he could have raised his career-offender argument before or during his

sentencing proceeding, and he voluntarily waived his additional adequate remedies

by waiving his right to appeal or collaterally attack his sentence. See United States

v. Johnson, 541 F.3d 1064, 1068 (11th Cir. 2008) (explaining an appeal waiver

includes the waiver of the right to appeal even blatant error).


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AFFIRMED.




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