United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
Autuan Harris ("Harris") comes before the Court on
a motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255. Having considered the pleadings and
the record, along with the relevant law, the Court finds that
the motion should be denied.
Facts and Procedural History
September 11, 2014, pursuant to a written plea agreement,
Harris pleaded guilty to distribution of cocaine base. Doc.
#61. Because Harris had a 2001 Mississippi state-court
conviction for possession and sale of marijuana, and a prior
federal conviction for distribution of cocaine base, he
received an enhanced sentence as a career offender under
United States Sentencing Guideline ("Guideline")
§4B 1.1(b). See Presentence Investigation
Report ("PSR") at ¶28. Based upon Harris'
total offense level of 29 and a criminal history category of
VI, he faced a potential sentence range of 151 to 188 months.
PSR at ¶91.
January 26, 2015, Harris was sentenced to a 151-month term of
imprisonment, and judgment was entered on January 29, 2015.
Doc. #74. Harris appealed, and his appeal was dismissed on
February 16, 2016. Docs. #75 & #92. On or about January
30, 2017, Harris filed the instant motion, arguing that his
sentence was improperly enhanced, as his 2001 conviction for
possession and sale of marijuana should not have been counted
as a controlled substance offense in his career offender
determination. Doc. #93 at 2.
defendant has been convicted and exhausted his appeal rights,
a court may presume that "he stands fairly and finally
convicted." United States v. Frady, 456 U.S.
152, 164 (1982). A motion brought pursuant to §2255 is a
"means of collateral attack on a federal sentence."
Cox v. Warden, Federal Detention Or,, 911 F.2d 1111,
1113 (5th Cir. 1990) (citation omitted). There are four
separate grounds upon which a federal prisoner may move to
vacate, set aside, or correct a sentence under 28 U.S.C.
§2255: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose the sentence; (3) the sentence
exceeds the statutory maximum sentence; or (4) the sentence
is otherwise subject to collateral attack. 28 U.S.C.
§2255(a). Collateral attack limits a movant's
allegations to those of "constitutional or
jurisdictional magnitude." United States v.
Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (citation
omitted). Relief under §2255 is reserved, therefore, for
violations of "constitutional rights and for that narrow
compass of other injury that could not have been raised on
direct appeal and, would, if condoned, result in a complete
miscarriage of justice." United States v.
Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
qualify as a career offender under the United States
Sentencing Guidelines, a defendant must, inter alia,
have at least two prior felony convictions for either a crime
of violence or a controlled substance offense. Guideline
§4Bl.l(a). A "controlled substance offense" is
classified 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 a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense." Guideline §4B
1.2(b). The Guidelines definition of a controlled substance
offense includes "attempting to commit such
offenses." Guideline §4B1.2, N.1.
argues that his 2001 Mississippi conviction for possession of
marijuana with intent to sell pursuant to Miss. Code Ann.
§ 41-29-139(a)(1) is not a controlled substance offense
under the Guidelines, as the law criminalizes conduct broader
than that which is designated as a controlled substance
offense under the Guidelines. In support of his claim, Harris
relies primarily on United States v. Hinkle, 832
F.3d 569 (5th Cir. 2016), where the Fifth Circuit noted that
Texas' definition of "delivery" of a controlled
substance does not qualify as a controlled substance offense
under the Guidelines' definition, since Texas'
statute can criminalize "offering to sell."
Hinkle, 832 F.3d at 573-76.
Mississippi statute under which Harris was convicted of the
sale of marijuana states:
[I]t is unlawful for any person knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute,
dispense or possess with intent to sell, barter, transfer,
manufacture, distribute or dispense a controlled substance...
Miss. Code Ann. § 41-29-139(a)(1). Mississippi law
defines "distribute" as "means to deliver
other than by administering or dispensing a controlled
substance." Miss. Code Ann. § 41-29- 105(h). The
definition of "deliver" in the context of a
controlled substance offense is "the actual,
constructive, or attempted transfer from one person to
another of a controlled substance, whether or not there is an
agency relationship." Miss. Code Ann. §
41-29-105(h). Therefore, unlike Texas' law, the
Mississippi statute does not criminalize an offer to sale,
and Harris' conviction for possession and sale of
marijuana qualifies as a controlled substance offense under
Guideline §4B1.2. See, e.g., United States v.
Olson, 849 F.3d 230, 231-32 (5th Cir. 2017) (finding
defendant's two prior California drug convictions were
properly characterized as controlled substance offenses under
the Guidelines because possession of a controlled substance
with intent to sell requires actual or constructive
possession). Accordingly, Harris was properly qualified as a
career offender under Guideline §4B1.1, and his argument
is without merit.
Court must "issue or deny a certificate of appealability
when it enters a final order adverse to the applicant."
Rule 11 of the Rules Governing Section 2255 Proceedings for
the United States District Courts. Harris must obtain a COA
before he may appeal the denial of his §2255 motion. 28
U.S.C. §2253(c)(1)(B). A COA will issue "only if
the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. §2253(c)(2). For
cases rejected on their merits, a movant "must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong" to warrant a COA. Slack v. McDaniel,529 U.S. 473, 484 (2000); see also United States v.
Jones,287 F.3d 325, 329 (5th Cir. 2002) (applying
Slack to COA determination in §2255
proceeding). To obtain a COA on a claim that has been
rejected on procedural grounds, a movant must demonstrate
"that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a