from the United States District Court for the Middle District
of Florida D.C. Docket No. 6:16-cv-00976-GKS-DCI;
JORDAN, GRANT and HULL, Circuit Judges.
Cori Tribue, a federal prisoner proceeding with counsel,
appeals the district court's denial of his 28 U.S.C.
§ 2255 motion to vacate his sentence. Tribue argued that
his prior Florida conviction for fleeing and eluding in 2006
no longer qualified as a violent felony after Johnson v.
United States, 576 U.S. __, 135 S.Ct. 2551 (2015), so he
was no longer subject to an enhanced sentence under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e). Citing Beeman v. United States, 871 F.3d
1215 (11th Cir. 2017), the district court ruled that Tribue
failed to prove that the ACCA's residual clause affected
his sentence because he still had three qualifying serious
drug offenses. On appeal, Tribue argues, in relevant part,
that the district court erred in relying on his 2007
conviction for delivery of cocaine to sustain his ACCA
enhancement because the government waived reliance on the use
of that conviction as an ACCA predicate.
careful review of the parties' briefs and the record, and
with the benefit of oral argument, we conclude that the
government did not waive reliance on Tribue's 2007
conviction for delivery of cocaine, and in the § 2255
proceedings the government permissibly introduced
Shepard documents to prove the qualifying nature
of that 2007 conviction. Thus, we affirm the district
court's denial of Tribue's § 2255
February 2013, Tribue pled guilty to conspiring to distribute
and possess with intent to distribute 500 grams or more of a
mixture and substance containing cocaine, in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(ii), and
to possessing a firearm as a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1).
In exchange the government dismissed six charges against
Tribue for distributing cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C).
Tribue's change of plea hearing, his defense counsel
predicted, "[b]ased on [Tribue's] criminal record, .
. . he will be scored as an armed career criminal."
Counsel admitted that Tribue had "several
deliveries" "of cocaine," yet he was "not
by this Plea Agreement waiving his right to challenge any of
those predicates." Counsel had advised Tribue that
"the 15 years . . . in terms of a minimum mandatory
penalty, is a worst-case scenario" and, if they were
"successful on challenging the armed career criminal
[enhancement], it would be a ten-year statutory maximum as a
felon in possession of a firearm," but "[e]ither
way, [Tribue] would still plead." Defense counsel
clarified that his remarks should not "be seen as a
concession or abandonment of any legal challenges [he] may
have at sentencing, especially since none of the predicates
[were] mentioned in [the] Plea Agreement, which [he had] not
Presentence Investigation Report
probation officer's presentence investigation report
("PSI") assigned Tribue a base offense level of 26,
pursuant to U.S.S.G. § 2D1.1(c)(7), because Tribue's
drug offense involved 624.9 grams of cocaine, which is more
than 500 grams but less than 2 kilograms of
cocaine. The probation officer designated Tribue as
an armed career criminal under the ACCA because he had
"at least three prior convictions for a violent felony
or serious drug offense, or both, that were committed on
occasions different from one another." The probation
officer applied the enhancement under the ACCA based on
Tribue's Florida convictions for: (1) delivery of cocaine
in 2003; (2) fleeing and eluding in 2006; and (3) delivery of
cocaine in 2009.
also listed in the criminal history section Tribue's
several additional prior Florida convictions, including (1)
lewd and lascivious behavior in 2005; (2) possession of a
controlled substance in 2005; (3) tampering with physical
evidence in 2005; (4) possession of a controlled substance in
2006; (5) solicitation to commit purchase of cocaine in 2007;
(6) possession of a controlled substance in July 2007; and
(7) possession of a controlled substance in August 2007.
result of Tribue's ACCA status, the PSI increased
Tribue's offense level from 26 to 37, pursuant to
U.S.S.G. § 4B1.4(b)(2). The PSI then applied a
three-level reduction for acceptance of responsibility,
pursuant to U.S.S.G. § 3E1.1(a) and (b), making
Tribue's total offense level 34.
of his ACCA status, Tribue's criminal history category
was VI based on his criminal history score of 22. With a
total offense level of 34 and a criminal history category of
VI, Tribue's initial advisory guidelines range was 262 to
327 months' imprisonment.
objected to the PSI, arguing that his 2009 conviction for
delivery of cocaine did not count as an ACCA predicate
offense because it was "relevant conduct to the instant
offense." The probation officer responded that
Tribue's 2009 conviction involved a delivery of cocaine
on August 26, 2008, and his drug conspiracy charge in the
instant case involved separate conduct between June 24, 2012,
and November 7, 2012. The government did not file any
objections and agreed with the probation officer.
sentencing, the government filed a motion under U.S.S.G.
§ 5K1.1 for the district court to depart downward based
on Tribue's substantial assistance. The government
recommended that Tribue receive a four-level offense
reduction, which would result in an adjusted total offense
level of 30 and an adjusted advisory guidelines range of 168
to 210 months' imprisonment.
commencement of Tribue's sentencing hearing, the district
court asked Tribue whether "there [was] anything
regarding the contents of the [PSI] that [he would] like to
place on the record," and Tribue's counsel responded
"No, Your Honor. There was previously an objection, but
it's . . . been resolved with the government." Thus,
at the sentencing hearing, Tribue withdrew any objection to
the ACCA enhancement. The government also responded that
there was nothing to do regarding the PSI. Indeed, at
sentencing, Tribue did not object to his classification as an
armed career criminal.
the district court invited Tribue to allocute, defense
counsel asked to "be heard" on the motion of the
government to depart downward. Tribue's counsel requested
a four-level offense departure, which would result in an
adjusted advisory guidelines range of 168 to 210 months'
imprisonment. The government "recommend[ed] the ...