USA v. CARTER

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Case No. 5:19cr64-RH-MAL
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
UNITED STATES OF AMERICA
v. 	Case Nos.: 	5:19cr64/RH/MAL
5:23cv25/RH/MAL
GERRY F. CARTER,
Defendant.
ORDER DENYING THE § 2255 MOTION
The defendant Gerry F. Carter seeks relief from his conviction and sentence
under 28 U.S.C. § 2255. Some of his arguments could have been raised on direct
appeal and thus are procedurally defaulted. And all are unfounded on the merits.
This order denies the motion.
I. 	Background
Mr. Carter pled guilty to two offenses. The first was conspiracy to distribute
or possess with intent to distribute methamphetamine (count one). The second was
possessing a firearm in furtherance of the methamphetamine offense (count two).
Under 21 U.S.C. § 841(b)(1)(A)(viii), the minimum sentence on count one
was 25 years, because the offense involved 50 grams or more of
methamphetamine—in fact, very substantially more—and Mr. Carter had two prior
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convictions of serious drug felonies. Under 18 U.S.C. § 924(c), the minimum
sentence on count two was 5 years, and the sentence had to be served
consecutively to any other sentence. Thus Mr. Carter’s combined minimum
sentence was 30 years. He is serving the minimum sentence: 300 months on count
one plus 60 months consecutive on count two.
Mr. Carter’s § 2255 motion asserts four claims. The first is that his plea was
not knowing and voluntary because he was not properly informed of the elements
of the § 924(c) offense. The second is that he is actually innocent of the § 924(c)
offense as shown at least partly by the fact that no firearm was recovered. The third
is that his attorney’s failure to argue that his prior convictions were not “serious
drug felonies” under § 841 constituted ineffective assistance. And the fourth is that
the prior convictions were actually not “serious drug felonies” because under
Georgia law, the drugs covered by the statute he was convicted of violating
included hemp, a substance no longer covered by § 841.
All the claims are unfounded.
I. 	Knowledge of the § 924(c) elements
Mr. Carter complains that neither the court nor his attorney explained that
under § 924(c), “carrying” and “possessing” a firearm are separate acts requiring
different proof. He says his approach to the case would have been different had he
been properly advised, but he does not explain how or why.
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The indictment charged both carrying and possessing, but either standing
alone would do, and when offering the plea agreement, the government chose to
proceed on the charge of possessing. See ECF No. 36 at 1–2; ECF No. 35 at 6. This
was permissible; as is well established, the government can charge in the
conjunctive but prove in the disjunctive. See United States v. Kincherlow, 88 F.4th
897, 906–07 (11th Cir. 2023) (Carnes, J. concurring) (collecting cases); United
States v. Howard, 742 F.3d 1334, 1344 n.3 (11th Cir. 2014) (“Prosecutors can and
frequently do, however, charge alternative elements in the conjunctive and prove
one or more of them in the disjunctive, which is constitutionally permissible.”).
Before the plea colloquy during which Mr. Carter pled guilty, he signed a
Statement of Facts prepared by the government for use during the colloquy. See
ECF No. 35. The Statement of Facts set out the elements of each charged offense.
For the § 924(c) count, the Statement of Facts listed two elements: that the
defendant committed the drug trafficking crime charged in count one, and that the
defendant “knowingly possessed a firearm in furtherance of that crime, as charged
in the indictment.” This was a correct statement of law and closely tracked the jury
instruction that would have been given had the case gone to trial.
During the plea colloquy, Mr. Carter said he had discussed with his attorney
what the government would have to prove to establish his guilt. ECF No. 87 at 6–
7. And Mr. Carter said he had read the Statement of Facts line by line and word by
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word. ECF No. 87 at 7. He said the only thing he disagreed with was related to
drug amounts. Id. at 7–8. In addition to listing the elements on the § 924(c)
offense—elements Mr. Carter did not disagree with—the Statement of Facts
recounted Mr. Carter’s statement during a post-Miranda interview with law
enforcement that he possessed three pistols, all pictured in his cellphone, “for
protection when he dropped off money to his source of supply.” ECF No. 35 at 4.
During the plea colloquy, Mr. Carter said he had indeed possessed the pistols “for
protection in connection with the drug offense.” ECF No. 87 at 8–9.
A defendant’s statements under oath during a plea colloquy can present a
formidable barrier in a later collateral proceeding. See, e.g., Blackledge v. Allison,
431 U.S. 63, 73B74 (1977). A defendant “bears a heavy burden to show his
statements were false.” Winthrop-Redin v. United States, 767 F.3d 1210, 1217
(11th Cir. 2014) (quoting United States v. Rogers, 848 F.2d 166, 168 (11th Cir.
1988)); see also United States v. Stitzer, 785 F.2d 1506, 1514 n.4 (11th Cir. 1986)
(“[I]f the Rule 11 plea taking procedure is careful and detailed, the defendant will
not later be heard to contend that he swore falsely.”) (quotation omitted); United
States v. Faircloth, 712 F. App’x 887, 893 (11tht Cir. 2017) (stating a district court
is “entitled to rely on” a defendant’s statements under oath at a plea colloquy).
Mr. Carter says he would have proceeded differently had he been told the
elements of the § 924(c) offense, but the record makes clear he was told the
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elements of the offense, including in writing, and the elements were not
complicated. He admitted facts plainly establishing his guilt and has not said, even
today, what difference any further advice on the elements of the offense could
possibly have made. This claim is unfounded.
II. Actual innocence of possessing a firearm
Mr. Carter says he is innocent of possessing firearms as charged. As support
for the assertion, he says “there is no firearm existent in evidence in this matter,”
that the government did not seize or discover any alleged firearm, and that law
enforcement’s assertion that Mr. Carter made a post-Miranda statement admitting
possession of firearms for protection during his drug trafficking are “entirely
untruthful.” ECF No. 93 at 5.
These assertions are squarely contradicted by Mr. Carter’s sworn statements
at the plea colloquy, as recounted above. Had Mr. Carter wished to put the
government to its proof on the § 924(c) charge, he could have done so. Instead, he
said under oath during the plea colloquy that he possessed firearms as charged for
protection in connection with the drug offense.
His claim of actual innocence is unfounded.
III. Georgia marijuana convictions as serious drug felonies
The minimum sentence for a trafficking offense involving this amount of
methamphetamine ordinarily is 10 years. But the minimum increases to 15 years if
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the defendant has a prior conviction of a “serious drug felony” or “serious violent
felony.” And the minimum increases to 25 years if the defendant has two such
prior convictions.
To qualify as a “serious drug felony,” an offense must meet specific criteria,
including that it involves “manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of
imprisonment of ten years or more is prescribed by law.” See 18 U.S.C.
§ 924(e)(2)(A)(ii) (emphasis added) (made applicable by 21 U.S.C. § 802(58)
(defining “serious drug felony”)).
Mr. Carter’s minimum was 25 years based on two prior Georgia convictions
for possessing with intent to distribute marijuana. In the § 2255 motion’s third and
fourth claims, Mr. Carter asserts those convictions were not serious drug felonies.
The third claim is that his attorney rendered ineffective assistance by failing to
raise this issue, and the fourth claim is that Mr. Carter was entitled to prevail on the
merits of the issue.
The motion refers to an “accompanied memorandum of law,” but Mr. Carter
did not submit one. The basis of the claims apparently is that the Georgia statute
Mr. Carter was convicted of violating covers hemp as well as marijuana, while 21
U.S.C. § 802 does not. Had that been so at the time of the Georgia offenses, the
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Georgia convictions would not qualify as serious drug felonies. But that was not so
at that time; at that time § 802 covered hemp as well as marijuana. Hemp was
removed from § 802 only later.
A more complete explanation is this. Mr. Carter’s Georgia convictions
occurred in 2004 and 2012. See ECF No. 45 at 9–10 ¶ 43 & 11–12 ¶ 47. At that
time, hemp was covered under both the Georgia statute and § 802. Hemp was
excluded from § 802 in 2018. See ECF No. 93 at 8 (Mr. Carter’s acknowledgement
that the change occurred at that time); Brown v. United States, 602 U.S. 101, 107
(2024) (noting the exclusion of hemp by the Agriculture Improvement Act of 2018,
Pub. L. 115–334, § 12619(a)(2), 132 Stat. 5018).
When a comparison of drug types is necessary to determine whether a prior
conviction qualifies as a serious drug felony, the appropriate comparison is
between the state and federal definitions in place at the time the prior offense was
committed. The Supreme Court has explicitly so held:
The two cases now before us present the question whether a
state crime constitutes a “serious drug offense” if it involved a
drug that was on the federal schedules when the defendant
possessed or trafficked in it but was later removed. We hold that
such an offense qualifies.
Brown, 602 U.S. at 106; see also United States v. Jackson, 55 F.4th 846 (11th Cir.
2022).
This holding is fatal to Mr. Carter’s third and fourth claims.
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IV. 	Certificate of appealability
A defendant may appeal the denial of a § 2255 motion only if the district
court or court of appeals issues a certificate of appealability. Under 28 U.S.C.
§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84
(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v.
Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a
§ 2254 petition on the merits). As the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must
make a substantial showing of the denial of a constitutional
right, a demonstration that, under Barefoot, includes
showing that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were “adequate to deserve encouragement to proceed
further.”
529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to
obtain a certificate of appealability when dismissal is based on procedural grounds,
a petitioner must show, “at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Id. at 484.
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Mr. Carter has not made the required showing. This order thus denies a
certificate of appealability.
V. 	Conclusion
For these reasons,
IT IS ORDERED:
1. Mr. Carter’s motion for relief under 28 U.S.C. § 2255, ECF No. 93, is
denied.
2. The clerk must enter a judgment so providing.
3. A certificate of appealability is denied.
4. The clerk must close the files.
SO ORDERED on March 16, 2026.
s/Robert L. Hinkle
United States District Judge
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