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Tribue v. United States

United States Court of Appeals, Eleventh Circuit

July 11, 2019

ALEX CORI TRIBUE, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:16-cv-00976-GKS-DCI; 6:13-cr-00005-GKS-GJK-1

          Before JORDAN, GRANT and HULL, Circuit Judges.

          HULL, CIRCUIT JUDGE

         Alex 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.

         After 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[1] documents to prove the qualifying nature of that 2007 conviction. Thus, we affirm the district court's denial of Tribue's § 2255 motion.[2]

         I. BACKGROUND

         A. Guilty Pleas

         In 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).

         During 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 stipulated to."

         B. Presentence Investigation Report

         The 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.[3] 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.

         The PSI 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.

         As a 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.

         Regardless 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.

         C. Objections

         Tribue 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.

         Before 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.

         D. Sentencing Hearing

         At the 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.

         When 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 ...


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