USA v. Oliver

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARQUIS KEWON OLIVER, 	*
# 51815-509, 	*
*
Petitioner, 	*
* CRIMINAL NO. 19-00167-TFM-B
vs. 	* CIVIL ACTION NO. 25-00162-TFM-B
*
UNITED STATES OF AMERICA, 	*
*
Respondent. 	*
REPORT AND RECOMMENDATION
Pending before the Court is Petitioner Marquis Kewon Oliver’s
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence 	(Doc. 	92). 	This 	matter 	has 	been 	referred 	to 	the
undersigned Magistrate Judge for consideration and recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. Ala. GenLR 72(a)(2)(R),
and 	Rule 	8(b) 	of 	the 	Rules 	Governing 	Section 	2255 	Proceedings.1
Having 	carefully 	reviewed 	the 	record, 	the 	undersigned 	finds 	that
no 	evidentiary 	hearing 	is 	necessary 	for 	the 	disposition 	of 	this
matter.2 	Upon 	consideration, 	the 	undersigned 	hereby 	recommends
1 	United 	States 	District 	Judge 	Terry 	F. 	Moorer 	presided 	over 	the
proceedings 	in 	this 	matter. 	The 	undersigned 	has 	reviewed
Petitioner Oliver’s motion and all other relevant documents in the
Court’s 	file 	and 	has 	fully 	familiarized 	herself 	with 	the
proceedings before Judge Moorer.
2 	A district court is not required to hold an evidentiary hearing
on 	patently 	frivolous 	claims, 	claims 	that 	are 	based 	upon
unsupported 	generalizations, 	or 	claims 	that 	are 	affirmatively
contradicted 	by 	the 	record. 	Holmes 	v. 	United 	States, 	876 	F.2d
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that Petitioner Oliver’s § 2255 motion be DENIED, that this action
be DISMISSED with prejudice, and that judgment be entered in favor
of Respondent, the United States of America, and against Petitioner
Oliver. 	The 	undersigned 	further 	recommends 	that 	in 	the 	event
Petitioner 	Oliver 	requests 	a 	certificate 	of 	appealability 	and
seeks to appeal in forma pauperis, said requests be DENIED.
I. 	BACKGROUND
Petitioner 	Marquis 	Kewon 	Oliver 	(“Oliver”) 	was 	charged 	by
superseding information with conspiracy to possess with the intent
to distribute more than 100 kilograms of marijuana in violation of
21 	U.S.C. 	§ 	846. 	(Doc. 	60). 	Oliver 	waived 	prosecution 	by
indictment 	and 	agreed 	to 	plead 	guilty 	to 	the 	sole 	count 	of 	the
superseding 	information. 	(Docs. 	61, 	62). 	As 	part 	of 	the 	plea
agreement, 	the 	Government 	agreed 	to 	bring 	no 	additional 	charges
related 	to 	the 	facts 	underlying 	the 	superseding 	information, 	to
recommend a sentence at the low end of the advisory guideline range
as determined by the district court, and to raise no objection to
Oliver’s 	eligibility 	for 	safety 	valve 	relief. 	(Doc. 	62 	at 	6-7).
In 	return, 	Oliver, 	among 	other 	things, 	waived 	the 	right 	to
challenge 	his 	guilty 	plea, 	conviction, 	or 	sentence 	in 	a 	direct
appeal or collateral attack, except that Oliver reserved the right
to timely file a direct appeal challenging any sentence imposed in
1545, 1553 (11th Cir. 1989).
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excess of the statutory maximum or constituting an upward departure
or 	variance 	from 	the 	advisory 	guideline 	range, 	and 	to 	claim
ineffective 	assistance 	of 	counsel 	in 	a 	direct 	appeal 	or 	§ 	2255
motion. 	(Id. at 11-12).
At 	his 	change-of-plea 	hearing 	on 	November 	10, 	2021, 	Oliver
was 	placed 	under 	oath 	and 	questioned 	by 	the 	district 	court 	as 	to
the 	knowing 	and 	voluntary 	nature 	of 	his 	plea. 	(See 	Doc. 	88).
Oliver 	acknowledged 	that 	he 	had 	seen 	the 	superseding 	information
and had an opportunity to discuss the superseding information and
the case in general with his attorney. 	(Id. at 4). 	Oliver stated
that he was fully satisfied with his attorney’s representation and
advice. 	(Id.). 	He 	confirmed 	that 	he 	had 	reviewed 	the 	plea
agreement 	with 	his 	attorney 	before 	signing 	it 	and 	understood 	the
terms and conditions of the plea agreement. 	(Id. at 4-5). 	Oliver
denied that anyone had forced, threatened, or made any promises or
assurances to him beyond what was set out in the plea agreement in
order to cause him to plead guilty. 	(Id. at 5-6). 	Oliver stated
that he was pleading guilty of his own free will because he was in
fact guilty. 	(Id. at 6).
The district court informed Oliver of the potential penalties
for 	the 	offense, 	and 	Oliver 	confirmed 	that 	he 	understood 	those
penalties. 	(Id. 	at 	6-7). 	Oliver 	acknowledged 	that 	he 	had
discussed 	with 	his 	attorney 	how 	the 	sentencing 	guidelines 	might
affect his case. 	(Id. at 7). 	Oliver confirmed that he understood
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that 	the 	district 	court 	had 	the 	authority 	to 	impose 	a 	sentence
more 	or 	less 	severe 	than 	that 	called 	for 	in 	the 	guidelines, 	that
the 	sentence 	imposed 	might 	be 	different 	from 	any 	estimate 	his
attorney or anyone else might have given him, and that no one could
forecast 	with 	certainty 	the 	sentence 	he 	would 	ultimately 	receive
at 	sentencing. 	(Id. 	at 	7-10). 	Oliver 	also 	confirmed 	that 	he
understood 	he 	was 	waiving 	the 	right 	to 	appeal 	or 	collaterally
attack 	his 	conviction 	and 	sentence 	except 	in 	the 	limited
circumstances 	listed 	in 	the 	plea 	agreement. 	(Id. 	at 	10-11).
Oliver 	acknowledged 	that 	by 	pleading 	guilty, 	he 	was 	waiving 	his
right 	to 	a 	jury 	trial 	and 	the 	rights 	that 	go 	along 	with 	a 	trial.
(Id. at 11-12).
The 	district 	court 	informed 	Oliver 	of 	the 	elements 	of 	the
offense to which he was pleading guilty, and Oliver confirmed that
he 	understood 	those 	elements. 	(Id. 	at 	12-13). 	Oliver 	also
confirmed 	that 	he 	was 	knowingly 	waiving 	his 	right 	to 	prosecution
by indictment. 	(Id. at 13-14). 	The district court then addressed
Oliver’s alleged criminal conduct:
THE 	COURT: 	. 	. 	. 	Mr. 	Oliver, 	before 	I 	may 	accept 	your
plea 	of 	guilty 	to 	count 	one 	of 	the 	superseding
information, 	I 	must 	ask 	you 	some 	questions 	to 	satisfy
myself that you are, in fact, guilty.
Mr. Oliver, are . . . you the Marquis Oliver listed
in count one of the superseding information?
THE DEFENDANT: Yes, sir.
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THE 	COURT: 	Mr. 	Oliver, 	between 	January 	the 	1st 	of 	2017
and 	February 	the 	13th 	of 	2019, 	were 	you 	in 	Evergreen,
Alabama?
THE DEFENDANT: Yes, sir.
THE 	COURT: 	I 	take 	judicial 	notice 	that 	that 	is 	in 	the
Souther[n] District of Alabama.
During that time -- during those times and in that
place, that is Evergreen, Alabama, did you and at least
one 	other 	person 	enter 	into 	an 	arrangement 	wherein 	you
and they would work together to possess and possess with
the intent to distribute marijuana?
THE DEFENDANT: Yes, sir.
THE 	COURT: 	And 	do 	you 	understand 	that 	to 	possess
marijuana with the intent to distribute means that your
intention was to cause marijuana to be transferred from
the possession of one person to the possession of someone
else, 	whether 	or 	not 	any 	money 	would 	exchange 	hands 	or
not?
THE DEFENDANT: Yes, sir.
THE 	COURT: 	And 	did 	you 	enter 	into 	this 	understanding
knowingly 	and 	intentionally, 	that 	is 	not 	by 	way 	or
mistake 	or 	accident 	but 	fully 	understanding 	what 	you
were 	doing 	and 	intending 	to 	do 	so, 	that 	you 	joined 	in
this 	plan 	to 	possess 	and 	possess 	with 	intent 	to
distribute marijuana?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with that factual basis --
oh, 	and 	was 	the 	plan 	to 	distribute 	more 	than 	100
kilograms of marijuana?
THE DEFENDANT: Yes, sir.
THE 	COURT: 	Are 	you 	satisfied 	with 	that 	factual 	basis,
Counselors?
MS. CHAPPELEAR: Yes, Your Honor.
MR. HICKMAN: Yes, Your Honor.
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(Id. at 14-16). 	Oliver entered a plea of guilty to the charge in
count 	one 	of 	the 	superseding 	information, 	and 	the 	district 	court
accepted 	Oliver’s 	plea 	and 	adjudged 	him 	guilty 	of 	that 	offense.
(Id. at 16).
Before 	Oliver’s 	sentencing, 	a 	probation 	officer 	prepared 	a
presentence 	investigation 	report 	(“PSR”). 	(Doc. 	64). 	The 	PSR
classified 	Oliver 	as 	a 	career 	offender 	under 	U.S.S.G. 	§ 	4B1.1
because 	he 	was 	more 	than 	18 	years 	old 	at 	the 	time 	of 	the 	instant
offense 	of 	conviction; 	the 	instant 	offense 	of 	conviction 	was 	a
felony that was a controlled substance offense; and he had at least
two 	prior 	felony 	convictions 	for 	either 	a 	crime 	of 	violence 	or 	a
controlled 	substance 	offense.3 	(Id. 	at 	5). 	Oliver’s
classification as a career offender resulted in an adjusted offense
level of 34. 	(Id.). 	Oliver received a three-level reduction for
acceptance 	of 	responsibility, 	resulting 	in 	a 	total 	offense 	level
of 	31. 	(Id. 	at 	5). 	As 	a 	result 	of 	his 	designation 	as 	a 	career
offender, 	the 	PSR 	assigned 	Oliver 	a 	criminal 	history 	category 	of
VI. 	(Id. 	at 	7). 	Based 	on 	a 	total 	offense 	level 	of 	31 	and 	a
criminal 	history 	category 	of 	VI, 	the 	PSR 	calculated 	Oliver’s
3 The predicate offenses used for the career offender enhancement
included 	a 	2007 	conviction 	for 	attempted 	assault 	in 	the 	first
degree 	in 	the 	Conecuh 	County 	Circuit 	Court, 	and 	2007 	convictions
for 	assault 	in 	the 	second 	degree 	in 	the 	Covington 	County 	Circuit
Court. 	(See Doc. 64 at 6-7).
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guideline 	range 	as 	188 	to 	235 	months 	of 	imprisonment. 	(Id. 	at
11).
Oliver’s defense attorney, Michael Hickman (“Hickman”), filed
written 	objections 	to 	the 	PSR 	challenging 	the 	application 	of 	the
guidelines career offender enhancement. 	(Doc. 66). 	In particular,
Hickman challenged the PSR’s reliance on Oliver’s 2007 convictions
for attempted assault in the first degree and assault in the second
degree as predicate offenses for the career offender enhancement.4
4 	Hickman 	objected 	to 	the 	PSR 	“to 	the 	extent 	that 	the 	Attempted
Assault 	First 	Degree 	charge 	is 	used 	for 	Career 	Offender
enhancement” 	because 	the 	“factual 	submission 	contained 	at
Paragraph 	27 	[of 	the 	PSR] 	arguably 	demonstrates 	a 	reckless 	act
that would not qualify as a crime of violence under the Sentencing
Guidelines.” 	(Doc. 66 at 1).
Hickman 	objected 	to 	the 	PSR 	“to 	the 	extent 	that 	the 	Assault
Second 	Degree 	charges 	are 	being 	used 	for 	Career 	Offender
enhancement” for the following reasons:
First, 	AlaCourt 	contains 	no 	indictment 	regarding 	the
Assault 	Second 	charges 	or 	any 	other 	document 	showing
exactly 	what 	Defendant 	was 	charged 	with 	or 	pleaded
guilty to or the sentence given the Defendant. 	Instead,
the Consolidated Case Action Summary Sheet entries state
that 	Defendant 	pleaded 	guiltily 	to 	the 	offenses 	and
received the sentence listed in the [PSR].
Second, 	the 	factual 	allegations 	contained 	in 	the 	[PSR]
state 	that 	the 	assault 	charges 	arose 	from 	alleged
assaults 	on 	police 	officers. 	Under 	Alabama 	law, 	what
amounts to a resisting arrest misdemeanor can be charged
as 	an 	Assault 	Second 	Degree 	based 	upon 	the 	fact 	that 	a
slight degree of force was used against a police officer.
Furthermore, 	conduct 	that 	would 	constitute 	an 	Assault
Third 	Degree 	misdemeanor 	can 	be 	charged 	as 	an 	Assault
Second 	because 	the 	person 	assaulted 	was 	a 	police
officer, school employee, nurse, firefighter, or utility
employee. 	The 	undersigned 	submits 	that 	conduct 	that
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(See 	id.). 	In 	an 	addendum 	to 	the 	PSR, 	the 	probation 	officer
responded 	to 	Oliver’s 	objections 	to 	the 	PSR 	and 	stated 	that 	the
final PSR remained unchanged. 	(Doc. 68; see also Doc. 67). 	In a
sentencing 	memorandum 	filed 	shortly 	thereafter, 	Hickman 	expanded
upon 	his 	arguments 	that 	the 	career 	offender 	enhancement 	did 	not
apply 	because 	Oliver’s 	prior 	felony 	convictions 	for 	attempted
assault 	in 	the 	first 	degree 	and 	assault 	in 	the 	second 	degree 	did
not 	qualify 	as 	crimes 	of 	violence 	under 	the 	career 	offender
provision of the guidelines. 	(Doc. 71).
At Oliver’s sentencing hearing on February 10, 2022, Hickman
reiterated 	the 	objections 	to 	the 	PSR 	previously 	asserted 	in
Oliver’s 	sentencing 	position 	pleading 	and 	sentencing 	memorandum.
(Doc. 	89 	at 	3-4, 	9-10). 	The 	district 	court 	stated: 	“I 	have 	read
your sentencing memorandum and I read the government’s response to
the sentencing memorandum and I also read the probation officer’s
response 	to 	the 	objections 	that 	were 	filed 	by 	the 	defendant 	and
conclude 	that 	the 	government 	position 	and 	the 	position 	of 	the
probation 	officer 	. 	. 	. 	are 	correct.” 	(Id. 	at 	3). 	Thus, 	the
district 	court 	overruled 	Oliver’s 	objections 	and 	adopted 	the 	PSR
“with 	the 	specific 	findings 	that 	the 	total 	offense 	level 	is 	31,
could 	or 	should 	have 	been 	charged 	as 	a 	misdemeanor
offense 	should 	not 	be 	used 	as 	a 	Career 	Offender
Enhancement 	simply 	because 	the 	person 	assaulted 	was 	a
police officer.
(Id. at 2).
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the 	criminal 	history 	category 	is 	VI, 	the 	guidelines 	range 	is 	188
to 235 months, the supervised release term is four to five years,
the fine range is $30,000 to $5 million, and a special assessment
fee in the amount of $100 is due.” 	(Id. at 3-4). 	Pursuant to the
Government’s 	recommendation 	of 	a 	sentence 	at 	the 	low 	end 	of 	the
guidelines, 	the 	district 	court 	sentenced 	Oliver 	to 	188 	months 	of
imprisonment. 	(Doc. 76 at 2; Doc. 77 at 4; Doc. 89 at 7-10).
On 	February 	14, 	2022, 	Hickman 	filed 	a 	notice 	of 	appeal 	on
Oliver’s 	behalf 	and 	moved 	to 	withdraw 	as 	counsel 	for 	Oliver.
(Docs. 78, 79). 	On February 24, 2022, the district court granted
Hickman’s 	motion 	to 	withdraw 	and 	appointed 	attorney 	Domingo 	Soto
(“Soto”) 	to 	represent 	Oliver 	on 	direct 	appeal. 	(Doc. 	84). 	Soto
initially filed an Anders brief5 and moved to withdraw from further
representation of Oliver. 	(Doc. 90 at 2). 	However, the Eleventh
Circuit 	Court 	of 	Appeals 	denied 	Soto’s 	motion 	without 	prejudice
because 	his 	brief 	omitted 	three 	issues: 	(1) 	whether 	the 	United
States 	breached 	the 	plea 	agreement 	by 	objecting 	to 	Oliver’s
eligibility 	for 	safety 	valve 	relief; 	(2) 	whether 	Oliver 	was
5 	An 	Anders 	brief 	is 	filed 	by 	a 	defense 	attorney 	who 	seeks 	to
withdraw from a case on appeal based on a belief that there are no
meritorious issues to raise on appeal. 	See Anders v. California,
386 	U.S. 	738, 	744 	(1967) 	(“[I]f 	counsel 	finds 	[the 	defendant’s]
case to be wholly frivolous, after a conscientious examination of
it, 	he 	should 	so 	advise 	the 	court 	and 	request 	permission 	to
withdraw. 	That 	request 	must, 	however, 	be 	accompanied 	by 	a 	brief
referring 	to 	anything 	in 	the 	record 	that 	might 	arguably 	support
the appeal.”).
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eligible 	for 	safety 	valve 	relief 	or 	whether 	his 	appeal 	should 	be
held in abeyance pending the Eleventh Circuit’s en banc rehearing
of 	United 	States 	v. 	Garcon, 	997 	F.3d 	1301 	(11th 	Cir. 	2021); 	and
(3) 	whether 	Oliver’s 	prior 	convictions 	qualified 	as 	crimes 	of
violence 	for 	the 	guidelines 	career 	offender 	enhancement. 	(Id.).
In 	response, 	Soto 	filed 	a 	brief 	addressing 	the 	merits 	of 	the
identified issues. 	(Id.). 	On March 14, 2024, the Eleventh Circuit
issued an opinion affirming Oliver’s conviction and sentence. 	(Id.
at 2-4). 	Oliver did not petition the United States Supreme Court
for a writ of certiorari. 	(See Doc. 92 at 3).
On 	April 	10, 	2025,6 	Oliver, 	proceeding 	without 	an 	attorney,
filed 	the 	instant 	§ 	2255 	motion, 	which 	is 	accompanied 	by 	a
supporting 	memorandum 	and 	a 	declaration 	from 	Oliver. 	(Docs. 	92,
96-1). 	The 	United 	States 	filed 	a 	response 	in 	opposition 	to
Oliver’s 	motion. 	(Doc. 	97). 	Oliver 	filed 	a 	reply. 	(Doc. 	99).
Thus, 	Oliver’s 	§ 	2255 	motion 	has 	been 	fully 	briefed 	and 	is 	ripe
for resolution.
6 Under the mailbox rule, “a pro se prisoner’s motion to vacate is
deemed 	filed 	the 	date 	it 	is 	delivered 	to 	prison 	authorities 	for
mailing.” 	Adams v. United States, 173 F.3d 1339, 1341 (11th Cir.
1999) (per curiam). 	Absent evidence to the contrary, that date is
presumed to be the date the prisoner signed the motion. 	Washington
v. 	United 	States, 	243 	F.3d 	1299, 	1301 	(11th 	Cir. 	2001) 	(per
curiam). 	Oliver’s 	§ 	2255 	motion 	states 	that 	it 	was 	signed 	and
placed in the prison mailing system on April 10, 2025. 	(See Doc.
92 at 13, 39).
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II. 	HABEAS STANDARD
The 	limited 	scope 	of 	habeas 	relief 	is 	well 	established, 	as
this Court has recognized:
Collateral relief is an extraordinary remedy which “may
not do service for a[ ] [direct] appeal.” 	United States
v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed.
2d 816 (1982); see also Lynn v. United States, 365 F.3d
1225, 	1232 	(11th 	Cir. 	2004) 	(“Courts 	have 	long 	and
consistently affirmed that a collateral challenge, such
as a § 2255 motion, may not be a surrogate for a direct
appeal.”). 	A defendant who has waived or exhausted his
right to appeal is presumed to stand “fairly and finally
convicted.” 	Frady, 	456 	U.S. 	at 	164. 	Unless 	a 	claim
alleges a lack of jurisdiction or constitutional error,
the 	scope 	of 	collateral 	attack 	has 	remained 	extremely
limited. 	United States v. Addonizio, 442 U.S. 178, 185,
99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). 	Consequently,
“[i]f issues are raised and considered on direct appeal,
a defendant is thereafter precluded from urging the same
issues 	in 	a 	later 	collateral 	attack. 	. 	. 	. 	A 	defendant
is, of course, entitled to a hearing of his claims, but
not 	to 	duplicate 	hearings. 	The 	appellate 	process 	does
not 	permit 	reruns.” 	Moore 	v. 	United 	States, 	598 	F.2d
439, 441 (5th Cir. 1979).
United States v. Evans, 2008 U.S. Dist. LEXIS 59836, at *8-9, 2008
WL 3200694, at *3 (S.D. Ala. Aug. 6, 2008).
III. DISCUSSION7
A. 	Ineffective Assistance of Counsel in Plea Proceedings.
In 	ground 	one 	of 	his 	§ 	2255 	motion, 	Oliver 	claims 	that 	his
guilty 	plea 	was 	not 	knowingly, 	intelligently, 	and 	voluntarily
entered 	as 	a 	result 	of 	ineffective 	assistance 	of 	counsel. 	(Doc.
7 For the sake of organization, the Court is considering Oliver’s
grounds 	for 	relief 	in 	an 	order 	different 	from 	that 	in 	which 	they
were raised.
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92 at 5). 	Oliver asserts that he decided to plead guilty pursuant
to 	a 	plea 	agreement 	only 	because 	Hickman 	incorrectly 	advised 	him
that 	he 	was 	not 	subject 	to 	being 	sentenced 	as 	a 	career 	offender
and would limit his sentencing exposure to less than five years of
imprisonment 	by 	pleading 	guilty. 	(Id. 	at 	15). 	Oliver 	contends
that he would not have entered a guilty plea and would have instead
proceeded to trial had his counsel correctly advised him. 	(Id.).
To 	prevail 	on 	a 	claim 	of 	ineffective 	assistance 	of 	counsel,
Oliver 	must 	demonstrate 	both 	that 	(1) 	counsel’s 	performance 	was
deficient 	because 	it 	fell 	below 	an 	objective 	standard 	of
reasonableness, and (2) that counsel’s poor performance prejudiced
his 	defense 	because 	there 	is 	a 	reasonable 	probability 	that, 	but
for counsel’s errors, the result of the proceeding would have been
different. 	Strickland 	v. 	Washington, 	466 	U.S. 	668, 	687-88, 	694
(1984). 	Oliver 	bears 	the 	burden 	of 	proving 	his 	ineffective
assistance 	claims, 	and 	he 	must 	meet 	his 	burden 	on 	both 	prongs 	to
succeed. 	Williams 	v. 	Allen, 	598 	F.3d 	778, 	789 	(11th 	Cir. 	2010).
A 	court 	“need 	not 	address 	the 	performance 	prong 	if 	the 	defendant
cannot 	meet 	the 	prejudice 	prong, 	or 	vice 	versa.” 	Holladay 	v.
Haley, 	209 	F.3d 	1243, 	1248 	(11th 	Cir. 	2000) 	(internal 	citation
omitted).
The 	proper 	measure 	of 	attorney 	performance 	is 	whether
counsel’s performance was objectively reasonable under prevailing
professional 	norms 	considering 	all 	the 	circumstances. 	Hinton 	v.
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Alabama, 	571 	U.S. 	263, 	273 	(2014) 	(per 	curiam). 	This 	judicial
scrutiny 	is 	highly 	deferential, 	and 	courts 	adhere 	to 	a 	strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. 	Strickland, 466 U.S. at 689-
90. 	To be objectively unreasonable, the performance must be such
that 	no 	competent 	counsel 	would 	have 	taken 	the 	action. 	Rose 	v.
McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611
F.3d 1259, 1290 (11th Cir. 2010).
To 	establish 	prejudice, 	Oliver 	“must 	show 	that 	there 	is 	a
reasonable 	probability 	that, 	but 	for 	counsel’s 	unprofessional
errors, 	the 	result 	of 	the 	proceeding 	would 	have 	been 	different.”
Strickland, 	466 	U.S. 	at 	694. 	“A 	reasonable 	probability 	is 	a
probability 	sufficient 	to 	undermine 	confidence 	in 	the 	outcome.”
Id. 	To show prejudice in the context of an ineffective assistance
claim arising out of the plea process, Oliver “must show that there
is 	a 	reasonable 	probability 	that, 	but 	for 	counsel’s 	errors, 	he
would not have pleaded guilty and would have insisted on going to
trial.” 	Hill 	v. 	Lockhart, 	474 	U.S. 	52, 	59 	(1985). 	Oliver 	must
“convince 	the 	court 	that 	a 	decision 	to 	reject 	the 	plea 	bargain
would 	have 	been 	rational 	under 	the 	circumstances.” 	Padilla 	v.
Kentucky, 559 U.S. 356, 372 (2010).
To 	be 	knowing 	and 	voluntary, 	“(1) 	the 	guilty 	plea 	must 	be
free 	from 	coercion; 	(2) 	the 	defendant 	must 	understand 	the 	nature
of the charges; and (3) the defendant must know and understand the
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consequences 	of 	his 	guilty 	plea.” 	United 	States 	v. 	Mosley, 	173
F.3d 	1318, 	1322 	(11th 	Cir. 	1999) 	(quotations 	omitted). 	When
accepting 	a 	guilty 	plea, 	a 	district 	court 	must 	ensure 	that 	these
three 	“core 	concerns” 	of 	Federal 	Rule 	of 	Criminal 	Procedure 	11
have been met. 	United States v. Lejarde-Rada, 319 F.3d 1288, 1289
(11th Cir. 2003) (per curiam).
Additionally, 	“when 	a 	defendant 	makes 	statements 	under 	oath
at a plea colloquy, he bears a heavy burden to show his statements
were 	false.” 	United 	States 	v. 	Rogers, 	848 	F.2d 	166, 	168 	(11th
Cir. 1988) (per curiam). 	As the Supreme Court has made clear:
[T]he representations of the defendant, his lawyer, and
the 	prosecutor 	at 	[a 	plea] 	hearing, 	as 	well 	as 	any
findings 	made 	by 	the 	judge 	accepting 	the 	plea,
constitute 	a 	formidable 	barrier 	in 	any 	subsequent
collateral 	proceedings. 	Solemn 	declarations 	in 	open
court 	carry 	a 	strong 	presumption 	of 	verity. 	The
subsequent 	presentation 	of 	conclusory 	allegations
unsupported 	by 	specifics 	is 	subject 	to 	summary
dismissal, 	as 	are 	contentions 	that 	in 	the 	face 	of 	the
record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73–74 (1977).
In 	this 	case, 	the 	record 	reflects 	that 	Oliver 	voluntarily
pleaded 	guilty 	to 	the 	offense 	charged 	in 	the 	superseding
information with full knowledge of the nature of the charge against
him 	and 	the 	potential 	consequences 	of 	his 	plea. 	Oliver’s 	plea
agreement 	specifically 	informed 	him 	that 	he 	was 	waiving 	certain
rights 	by 	pleading 	guilty, 	including 	the 	right 	to 	a 	trial 	by 	an
impartial jury, the right to confront and cross-examine witnesses,
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and the right to call witnesses and present other evidence in his
defense. 	(Doc. 	62 	at 	1). 	The 	plea 	agreement 	further 	informed
Oliver 	that 	the 	district 	court 	could 	impose 	a 	minimum 	mandatory
prison 	term 	of 	five 	years 	to 	a 	maximum 	of 	forty 	years 	of
imprisonment 	for 	his 	offense. 	(Id. 	at 	4). 	The 	plea 	agreement
emphasized:
The 	Court 	will 	impose 	the 	sentence 	in 	this 	case. 	The
United States Sentencing Guidelines are advisory and do
not 	bind 	the 	Court. 	The 	defendant 	has 	reviewed 	the
application 	of 	the 	Guidelines 	with 	his 	attorney 	and
understands that no one can predict with certainty what
the sentencing range will be in this case until after a
pre-sentence 	investigation 	has 	been 	completed 	and 	the
Court 	has 	ruled 	on 	the 	results 	of 	that 	investigation.
The defendant understands that at sentencing, the Court
may not necessarily sentence the defendant in accordance
with the Guidelines. 	The defendant understands that he
will not be allowed to withdraw his guilty plea if the
advisory guideline range is higher than expected, or if
the Court departs or varies from the advisory guideline
range.
(Id.). 	It 	further 	stressed 	“that 	this 	Plea 	Agreement 	does 	not
create any right to be sentenced in accordance with the Sentencing
Guidelines, or below or within or particular guideline range,” and
“that determination of the sentencing range or guideline level, or
the 	actual 	sentence 	imposed, 	is 	solely 	the 	discretion 	of 	the
Court.” 	(Id. at 5). 	Oliver signed the plea agreement immediately
below 	a 	paragraph 	stating 	that 	he 	had 	“read” 	and 	“carefully
reviewed every part” of the plea agreement with his attorney, and
that 	he 	understood 	the 	plea 	agreement 	and 	voluntarily 	agreed 	to
it. 	(Id. at 14). 	Oliver also stipulated that the factual resume
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was 	“true 	and 	accurate 	in 	every 	respect, 	and 	that 	had 	the 	matter
proceeded 	to 	trial, 	the 	United 	States 	could 	have 	proved 	the 	same
beyond a reasonable doubt.” 	(Id. at 14-17).
At his change-of-plea hearing, Oliver acknowledged under oath
that 	he 	had 	reviewed 	the 	plea 	agreement 	with 	his 	attorney 	before
he signed it and understood the terms of the plea agreement. 	(Doc.
88 	at 	4-5). 	He 	confirmed 	that 	no 	one 	had 	attempted 	to 	force 	or
threaten him to plead guilty, nor had anyone “made any promises or
assurances of any kind” to him beyond what was set out in the plea
agreement 	to 	cause 	him 	to 	enter 	a 	guilty 	plea. 	(Id. 	at 	5-6).
Oliver 	confirmed 	that 	he 	understood 	the 	potential 	penalties 	for
the 	offense, 	including 	“a 	term 	of 	imprisonment 	of 	not 	less 	than
five 	years” 	and 	“no 	more 	than 	40 	years.” 	(Id. 	at 	6-7). 	Oliver
also 	confirmed 	that 	he 	had 	discussed 	with 	his 	attorney 	how 	the
sentencing guidelines might apply to his case. 	(Id. at 7). 	Oliver
acknowledged that because the guidelines had yet to be calculated
and ruled on in his case, his sentence could be different from any
estimate 	his 	lawyer 	may 	have 	given 	him. 	(Id. 	at 	7-8). 	Oliver
further 	acknowledged 	that 	because 	the 	district 	court 	had 	the
authority to impose a sentence more or less severe than that called
for 	in 	the 	guidelines, 	his 	sentence 	“may 	be 	different 	than 	the
guidelines 	range 	or 	any 	estimate 	[his] 	lawyer 	may 	have 	given
[him].” 	(Id. 	at 	8-9). 	Oliver 	confirmed 	that 	he 	understood 	that
no 	one 	could 	currently 	“tell 	[him] 	what 	the 	sentence 	will 	be 	at
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sentencing and that the sentence could be the maximum, . . . or it
may 	be 	something 	less 	than 	the 	maximum, 	and 	no 	one 	[could] 	tell
[him] where along that line [his] case [would] fall as far as what
sentence 	he 	receive[d].” 	(Id. 	at 	9-10). 	Oliver 	also 	confirmed
that he understood the limited appeal and collateral attack waiver
in his plea agreement. 	(Id. at 10-11). 	Finally, Oliver confirmed
that 	he 	understood 	the 	elements 	of 	the 	offense 	to 	which 	he 	was
pleading 	guilty, 	and 	he 	admitted 	to 	the 	factual 	basis 	for 	the
charge. 	(Id. at 12-15).
Oliver 	has 	not 	met 	his 	“heavy 	burden 	to 	show 	that 	his
statements 	under 	oath 	were 	false.” 	See 	Patel 	v. 	United 	States,
252 F. App’x 970, 975 (11th Cir. 2007) (per curiam).8 	As reflected
above, the district court addressed Rule 11’s core concerns during
the guilty plea colloquy and ensured that Oliver was entering his
plea 	free 	from 	coercion 	and 	with 	understanding 	of 	the 	nature 	of
the charge against him and the consequences of his plea.
Oliver 	cannot 	show 	ineffective 	assistance 	based 	on 	his
counsel’s 	alleged 	“misrepresentation 	of 	the 	likely 	sentencing
consequences 	of 	pleading 	guilty” 	because 	the 	plea 	agreement 	and
8 Federal Appendix cases are unpublished Eleventh Circuit opinions
and are not considered binding precedent, but they may be cited as
persuasive authority. 	See 11th Cir. R. 36-2 (“Unpublished opinions
are 	not 	considered 	binding 	precedent, 	but 	they 	may 	be 	cited 	as
persuasive 	authority.”); 	Henry 	v. 	Comm’r 	of 	Soc. 	Sec., 	802 	F.3d
1264, 	1267 	n.1 	(11th 	Cir. 	2015) 	(per 	curiam) 	(“Cases 	printed 	in
the Federal Appendix are cited as persuasive authority.”).
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properly 	conducted 	guilty 	plea 	colloquy 	dispelled 	any 	prejudice
allegedly created by counsel’s erroneous sentence predictions. 	As
noted, Oliver asserts that his attorney told him that if he pleaded
guilty to the marijuana conspiracy count, he would not be sentenced
as 	a 	career 	offender 	and 	would 	receive 	less 	than 	five 	years 	of
imprisonment. 	(Doc. 92 at 21). 	However, the penalty page of the
superseding information, which Oliver read and discussed with his
attorney, clearly indicated that the sentencing range was five to
forty 	years 	of 	imprisonment. 	(See 	Doc. 	60-1; 	Doc. 	88 	at 	4).
Likewise, 	the 	plea 	agreement, 	which 	Oliver 	“read” 	and 	“carefully
reviewed” 	with 	his 	attorney, 	expressly 	stated 	that 	Oliver’s
offense carried “[f]ive (5) years minimum mandatory to forty (40)
years imprisonment.” 	(See Doc. 62 at 4, 14; Doc. 88 at 4-5). 	The
plea agreement also stated that “no one can predict with certainty
what 	the 	sentencing 	range 	will 	be 	in 	this 	case 	until 	after 	the
pre-sentence 	investigation 	has 	been 	completed 	and 	the 	Court 	has
ruled 	on 	the 	results 	of 	that 	investigation;” 	that 	“the 	Court 	may
not 	necessarily 	sentence 	the 	defendant 	in 	accordance 	with 	the
Guidelines;” 	and 	“that 	determination 	of 	the 	sentencing 	range 	or
guideline 	level, 	or 	the 	actual 	sentence 	imposed, 	is 	solely 	the
discretion of the Court.” 	(Id. at 4-5).
During his plea colloquy, Oliver confirmed that he understood
he 	could 	receive 	“a 	term 	of 	imprisonment 	of 	not 	less 	than 	five
years, no more than 40 years” for his crime if he entered a guilty
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plea. 	(Doc. 	88 	at 	6). 	Oliver 	stated 	under 	oath 	that 	no 	one 	had
attempted 	to 	force 	or 	threaten 	him 	to 	cause 	him 	to 	plead 	guilty,
and 	he 	expressly 	denied 	that, 	beyond 	his 	plea 	agreement, 	“anyone
made any promises or assurances of any kind to get [him] to enter
a 	plea 	of 	guilty.” 	(Id. 	at 	5-6). 	Oliver 	acknowledged 	that 	the
district 	court 	could 	impose 	a 	sentence 	more 	or 	less 	severe 	than
called for by the guidelines, and that his ultimate sentence could
differ from his counsel’s estimate. 	(Id. at 7-10).
Thus, 	even 	accepting 	arguendo 	Oliver’s 	assertion 	that 	his
attorney 	underestimated 	his 	likely 	sentence 	and 	wrongly 	assured
him 	that 	he 	would 	not 	be 	sentenced 	as 	a 	career 	offender, 	Oliver
cannot 	establish 	that 	counsel’s 	performance 	was 	constitutionally
ineffective 	because 	the 	plea 	agreement 	and 	guilty 	plea 	colloquy
cured 	any 	prejudice 	allegedly 	created 	by 	counsel’s 	erroneous
predictions. 	See, 	e.g., 	United 	States 	v. 	Himick, 	139 	F. 	App’x
227, 228-29 (11th Cir. 2005) (stating that “a defendant’s reliance
on 	an 	attorney’s 	mistaken 	impression 	about 	the 	length 	of 	his
sentence 	is 	insufficient 	to 	render 	a 	plea 	involuntary 	as 	long 	as
the 	court 	informed 	the 	defendant 	of 	his 	maximum 	possible
sentence”); 	Wilborn v. United States, 2014 WL 3385307, at *8 (N.D.
Ala. July 10, 2014) ([“W]here, as here, a court correctly advises
a 	defendant 	at 	the 	plea 	colloquy 	about 	his 	potential 	sentence,
including its possible maximum and minimum, a defendant generally
cannot establish prejudice on an effective-assistance claim based
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on 	an 	erroneous 	sentence 	prediction.”); 	United 	States 	v.
Herrington, 	350 	F. 	App’x 	363, 	369 	(11th 	Cir. 	2009) 	(per 	curiam)
(holding 	that 	petitioner 	failed 	to 	show 	that 	his 	plea 	was 	not
entered knowingly and voluntarily because although counsel had not
told 	petitioner 	he 	could 	be 	subject 	to 	the 	career 	offender
enhancement, 	the 	court 	informed 	petitioner 	that 	any 	sentencing
estimates 	made 	by 	counsel 	were 	not 	binding 	on 	the 	court 	and
informed him of the maximum possible penalties he faced); Amoo v.
United 	States, 	2009 	U.S. 	Dist. 	LEXIS 	153185, 	at 	*8-9, 	2009 	WL
10705620, 	at 	*3 	(N.D. 	Ga. 	May 	7, 	2009) 	(holding 	that 	petitioner
could 	not 	show 	prejudice 	based 	on 	his 	counsel’s 	erroneous
prediction 	that 	he 	would 	receive 	a 	safety 	valve 	reduction 	and
downward 	departure 	and 	would 	not 	receive 	firearm 	and 	money
laundering 	enhancements, 	because 	petitioner 	knew 	the 	possible
maximum 	sentence 	he 	faced, 	understood 	that 	his 	ultimate 	sentence
could differ from his counsel’s estimate, understood that the court
was not bound by the parties’ agreements and recommendations, and
received a sentence well below the possible maximum sentence).
Indeed, it is clear from the record that Oliver chose to plead
guilty 	with 	full 	knowledge 	of 	the 	potential 	penalties 	that 	could
be imposed and complete awareness that his guidelines and ultimate
sentence 	could 	differ 	from 	any 	estimate 	given 	to 	him 	by 	his
counsel. 	Thus, 	the 	record 	affirmatively 	contradicts 	Oliver’s
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assertion that he would not have entered a guilty plea absent the
allegedly incorrect advice of his attorney.
Nor has Oliver offered anything to convince this Court “that
a 	decision 	to 	reject 	the 	plea 	bargain 	would 	have 	been 	rational
under 	the 	circumstances.” 	See 	Padilla, 	559 	U.S. 	at 	372. 	It 	is
notable that Oliver does not deny the essential facts establishing
his 	guilt 	or 	suggest 	that 	he 	had 	any 	viable 	defenses 	at 	trial 	or
any 	reasonable 	prospect 	of 	acquittal. 	See, 	e.g., 	Finley-Sanders
v. United States, 2022 U.S. Dist. LEXIS 102761, at *27-28, 2022 WL
2783842, 	at 	*9 	(N.D. 	Ga. 	Mar. 	23, 	2022) 	(“[E]ven 	if 	Movant 	had
established 	that 	counsel 	was 	deficient, 	she 	cannot 	show 	that 	it
would 	have 	been 	rational 	for 	her 	to 	reject 	the 	plea. 	First, 	the
evidence 	against 	Movant 	was 	overwhelming, 	and 	Movant 	does 	not
attempt to, nor could she, show that she had any viable defense to
counter 	that 	overwhelming 	evidence 	at 	trial.”), 	report 	and
recommendation 	adopted, 	2022 	U.S. 	Dist. 	LEXIS 	102683, 	2022 	WL
2063729 	(N.D. 	Ga. 	June 	8, 	2022). 	Moreover, 	Oliver 	accepted 	an
advantageous 	plea 	agreement 	and 	faced 	a 	much 	lengthier 	prison
sentence had he been convicted after a trial. 	His offense carried
a 	maximum 	prison 	term 	of 	forty 	years. 	As 	a 	result 	of 	his 	plea
agreement, 	Oliver 	received 	a 	three-point 	offense-level 	reduction
for 	acceptance 	of 	responsibility 	and 	a 	recommendation 	that 	he 	be
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sentenced 	at 	the 	low 	end 	of 	the 	advisory 	guideline 	range.9 	At
sentencing, 	the 	district 	court 	specifically 	stated 	that 	“had 	the
government 	not 	made 	a 	recommendation 	as 	it 	did 	[pursuant 	to 	the
plea 	agreement] 	for 	the 	sentence 	that 	I 	did 	impose, 	I 	would 	have
given him a much harsher sentence than that.” 	(Doc. 89 at 10).
In sum, Oliver’s claim of ineffective assistance based on his
counsel’s 	allegedly 	incorrect 	sentence 	predictions 	fails, 	since
the 	record 	unambiguously 	reflects 	that 	Oliver’s 	guilty 	plea 	was
knowing and voluntary despite the alleged misadvice of his counsel.
Accordingly, Oliver is entitled to no relief with respect to this
claim.
B. 	Ineffective Assistance of Counsel at Sentencing.
Oliver 	further 	claims 	that 	Hickman 	was 	ineffective 	for
failing 	to 	adequately 	challenge 	his 	classification 	as 	a 	career
offender under the sentencing guidelines. 	(Doc. 92 at 7, 32-33).
Specifically, 	Oliver 	contends 	that 	Hickman 	rendered 	ineffective
assistance 	by 	failing 	to 	argue 	that 	Oliver’s 	instant 	offense 	of
conviction for conspiracy to possess with the intent to distribute
marijuana 	in 	violation 	of 	21 	U.S.C. 	§ 	846 	was 	not 	a 	“controlled
substance offense” as defined in U.S.S.G. § 4B1.2(b) and therefore
9 After receiving credit for acceptance of responsibility, Oliver’s
guideline 	imprisonment 	range 	was 	188 	to 	235 	months. 	Had 	Oliver
foregone 	credit 	for 	acceptance 	of 	responsibility 	and 	been 	found
guilty after a trial, his guideline imprisonment range would have
been 262 to 327 months.
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did not satisfy the second prong of the career offender enhancement
under U.S.S.G. § 4B1.1. 	(Id. at 28-29, 32-33).
A defendant is subject to a sentencing enhancement as a career
offender 	under 	the 	guidelines 	“if: 	(1) 	he 	was 	at 	least 	18 	years
old 	at 	the 	time 	he 	committed 	the 	instant 	offense 	of 	conviction;
(2) 	the 	instant 	offense 	of 	conviction 	is 	a 	felony 	that 	is 	either
a ‘crime of violence’ or a ‘controlled substance offense’; and (3)
he 	has 	at 	least 	two 	prior 	felony 	convictions 	for 	either 	a 	‘crime
of violence’ or a ‘controlled substance offense.’” 	United States
v. 	Howard, 	767 	F. 	App’x 	779, 	784 	(11th 	Cir. 	2019) 	(per 	curiam)
(citing U.S.S.G. § 4B1.1(a)).
The guidelines define a “controlled substance offense” 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 the possession of a controlled substance . . . with intent to
manufacture, 	import, 	export, 	distribute, 	or 	dispense.” 	U.S.S.G.
§ 4B1.2(b). 	At the time of Oliver’s sentencing in this case, the
commentary 	in 	Application 	Note 	1 	to 	§ 	4B1.2 	stated 	that 	the 	term
“controlled 	substance 	offense” 	includes 	“the 	offenses 	of 	aiding
and abetting, conspiring, and attempting to commit such offenses.”
Id. 	at 	§ 	4B1.2, 	cmt. 	n.1. 	Binding 	Eleventh 	Circuit 	precedent 	at
the 	time 	of 	Oliver’s 	sentencing 	considered 	this 	commentary 	to 	be
a 	“binding 	interpretation” 	of 	the 	term 	“controlled 	substance
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offense” 	and 	interpreted 	§ 	4B1.2(b) 	in 	light 	of 	the 	commentary.
See United States v. Lange, 862 F.3d 1290, 1294 (11th Cir. 2017);
United 	States 	v. 	Smith, 	54 	F.3d 	690, 	693 	(11th 	Cir. 	1995). 	And
United 	States 	v. 	Weir, 	51 	F.3d 	1031 	(11th 	Cir. 	1995), 	which 	was
also 	binding 	precedent 	at 	the 	time 	of 	Oliver’s 	sentencing,
specifically held that a conviction for conspiracy to possess with
intent 	to 	distribute 	marijuana 	under 	21 	U.S.C. 	§ 	846 	constituted
a 	“controlled 	substance 	offense” 	for 	purposes 	of 	the 	career
offender enhancement. 	Id. at 1031.
However, 	on 	January 	18, 	2023, 	the 	en 	banc 	Eleventh 	Circuit
determined 	that 	Smith 	and 	Lange 	were 	“wrong” 	to 	interpret 	§
4B1.2(b) in light of the commentary. 	United States v. Dupree, 57
F.4th 1269, 1279 (11th Cir. 2023) (en banc). 	The Eleventh Circuit
found 	that 	“the 	text 	of 	§ 	4B1.2(b) 	unambiguously 	exclude[d]
inchoate 	crimes” 	from 	the 	definition 	of 	a 	controlled 	substance
offense, and thus there was “no need to consider, much less defer
to, 	the 	commentary 	in 	Application 	Note 	1.” 	Id. 	Based 	on 	its
holding “that the definition of ‘controlled substance offense’ in
§ 4B1.2(b) [did] not include inchoate offenses” such as conspiracy,
the 	Eleventh 	Circuit 	found 	that 	a 	previous 	conviction 	for
conspiracy 	to 	possess 	with 	intent 	to 	distribute 	controlled
substances 	in 	violation 	of 	21 	U.S.C. 	§ 	846 	was 	not 	a 	controlled
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substance 	offense 	within 	the 	meaning 	of 	the 	career 	offender
enhancement. 	Id. at 1271, 1280.10
Based on the holding in Dupree, Oliver argues that his instant
offense of conviction for conspiracy to possess with the intent to
distribute 	marijuana 	in 	violation 	of 	21 	U.S.C. 	§ 	846 	was 	not 	a
“controlled substance offense” as defined in § 4B1.2(b). 	(Doc. 92
at 29). 	Thus, Oliver contends that he “is not and never has been
a 	career 	offender 	under 	the 	guidelines.” 	(Id.); 	see 	U.S.S.G. 	§
4B1.1(a) 	(“A 	defendant 	is 	a 	career 	offender 	if 	(1) 	the 	defendant
was at least eighteen years old at the time the defendant committed
the 	instant 	offense 	of 	conviction; 	(2) 	the 	instant 	offense 	of
conviction 	is 	a 	felony 	that 	is 	either 	a 	crime 	of 	violence 	or 	a
controlled 	substance 	offense; 	and 	(3) 	the 	defendant 	has 	at 	least
two 	prior 	felony 	convictions 	of 	either 	a 	crime 	of 	violence 	or 	a
controlled substance offense.”) (emphasis added).
The 	Government 	argues 	that 	“Dupree 	is 	irrelevant” 	because
“Oliver’s 	drug 	distribution 	conspiracy 	conviction 	was 	not 	the
10 The 	undersigned 	notes 	that 	“effective 	on 	November 	1, 	2023, 	the
Sentencing Guideline was amended to include inchoate offenses into
the 	definition 	of 	‘crimes 	of 	violence’ 	and 	‘controlled 	substance
offense[,]’ 	shifting 	the 	definition 	from 	the 	commentary 	to 	the
Sentencing Guidelines. 	The Sentencing Guidelines now provide that
‘[t]he 	terms 	“crime 	of 	violence” 	and 	“controlled 	substance
offense” 	include 	the 	offenses 	of 	aiding 	and 	abetting, 	attempting
to 	commit, 	or 	conspiring 	to 	commit 	any 	such 	offense’ 	for 	purpose
of 	a 	career 	offender 	enhancement. 	U.S.S.G. 	§ 	4B1.2.” 	United
States 	v. 	Willis, 	2024 	U.S. 	Dist. 	LEXIS 	188050, 	at 	*29, 	2024 	WL
4502299, at *11 (S.D. Fla. Oct. 16, 2024).
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basis for this Court’s finding that Oliver was a career offender.”
(Doc. 97 at 23, 27). 	Instead, the Government maintains that “the
Court’s determination that Oliver was a career offender was based
on 	Oliver’s 	prior 	Alabama 	convictions 	for 	attempted 	assault 	and
assault, 	which 	qualified 	as 	crimes 	of 	violence.” 	(Id. 	at 	23).
But 	the 	Government’s 	argument 	misses 	the 	point. 	Oliver 	is 	not
presently 	disputing 	that 	he 	met 	the 	third 	prong 	of 	the 	career
offender 	enhancement 	because 	had 	at 	least 	two 	prior 	felony
convictions for crimes of violence. 	Rather, Oliver contends that
he did not satisfy the second career offender prong because Dupree
clarified 	that 	his 	instant 	offense 	of 	conviction 	was 	not 	a
controlled substance offense as defined in § 4B1.2(b). 	See United
States 	v. 	Dawson, 	32 	F.4th 	254, 	265 	(3d 	Cir. 	2022) 	(noting 	that
“the same definition of ‘controlled substance offense’ applies to
both § 4B1.1(a)(2) and § 4B1.1(a)(3)”); United States v. Bautista-
Villarreal, 2023 U.S. App. LEXIS 17043, at *5-6, 2023 WL 4363995,
at 	*2 	(11th 	Cir. 	July 	6, 	2023) 	(per 	curiam) 	(holding 	that 	the
“district 	court 	plainly 	erred 	under 	now-controlling 	precedent,
Dupree, by applying a career-offender enhancement based partly on
[appellant’s] 	instant 	conviction 	for 	conspiracy 	to 	possess 	with
intent to distribute a controlled substance under § 846”) (emphasis
added).
However, 	Oliver 	cannot 	show 	that 	Hickman 	rendered
constitutionally deficient performance by failing to object to the
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classification of his instant offense of conviction as a controlled
substance 	offense 	as 	defined 	in 	§ 	4B1.2(b). 	As 	noted 	supra,
binding 	precedent 	at 	the 	time 	of 	Oliver’s 	sentencing 	proceedings
held 	that 	a 	conviction 	for 	conspiracy 	to 	possess 	with 	the 	intent
to 	distribute 	marijuana 	under 	21 	U.S.C. 	§ 	846 	qualified 	as 	a
controlled 	substance 	offense 	for 	purposes 	of 	the 	career 	offender
enhancement. 	See 	Weir, 	51 	F.3d 	at 	1031, 	overruled 	by 	Dupree, 	57
F.4th at 1279 n.9; see also United States v. Dupree, 849 F. App’x
911, 912 (11th Cir. 2021) (per curiam) (“Dupree’s argument that §
846 conspiracy is not a controlled substance offense is foreclosed
by our holding in Weir.”), reh’g en banc granted, opinion vacated,
25 F.4th 1341 (11th Cir. Feb. 18, 2022), and on reh’g en banc, 57
F.4th 	1269. 	Although 	the 	en 	banc 	Eleventh 	Circuit 	subsequently
overruled that precedent,11 “[a]n attorney’s failure to anticipate
a 	change 	in 	the 	law 	does 	not 	constitute 	ineffective 	assistance.”
Steiner 	v. 	United 	States, 	940 	F.3d 	1282, 	1293 	(11th 	Cir. 	2019)
(per 	curiam); 	see 	United 	States 	v. 	Lee, 	2023 	U.S. 	Dist. 	LEXIS
19633, 	at 	*7, 	2023 	WL 	1781648, 	at 	*3 	(M.D. 	Fla. 	Feb. 	6, 	2023)
(“Dupree 	entitles 	Lee 	to 	no 	relief. 	Dupree 	appeared 	after 	Lee’s
2019 	sentencing, 	and 	‘defendants 	are 	not 	entitled 	to 	an 	attorney
capable 	of 	foreseeing 	the 	future 	development 	of 	constitutional
11 	Dupree 	was 	issued 	in 	January 	2023, 	after 	Oliver 	was 	sentenced
in February 2022 but before the Eleventh Circuit affirmed Oliver’s
conviction and sentence on direct appeal in March 2024.
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law.’”) 	(citation 	omitted); 	Massey 	v. 	United 	States, 	2024 	U.S.
Dist. LEXIS 465, at *6-7, 2024 WL 22060, at *3 (M.D. Fla. Jan. 2,
2024) 	(“At 	the 	time 	of 	Massey’s 	sentencing, 	Weir 	was 	binding
precedence, 	so 	the 	conspiracy 	charge 	qualified 	under 	§ 	4B1.2.
[Defense counsel] cannot be deemed deficient for failing to raise
a 	meritless 	objection, 	or 	for 	failing 	to 	anticipate 	a 	future
development in constitutional law.”) (internal citations omitted);
United 	States 	v. 	Ardley, 	273 	F.3d 	991, 	993 	(11th 	Cir. 	2001)
(Carnes, J., concurring in the denial of rehearing en banc) (“[T]he
rule that it is not ineffective assistance for an attorney to fail
to 	foresee 	a 	change 	in 	the 	law 	applies 	even 	when 	the 	change 	is
such 	that 	the 	forfeited 	issue 	was, 	in 	hindsight, 	a 	sure 	fire
winner.”); see also Wimbush v. United States, 2024 U.S. Dist. LEXIS
68029, 	at 	*8, 	2024 	WL 	1619434, 	at 	*4 	(M.D. 	Fla. 	Apr. 	15, 	2024)
(“Counsel’s strategic decision not to raise this challenge to the
career 	offender 	enhancement 	was 	not 	unreasonable 	given 	that 	Weir
foreclosed 	such 	a 	challenge 	at 	the 	time 	of 	sentencing.”). 	“And,
even 	if 	non-binding 	precedent 	existed 	from 	which 	counsel 	could
have 	formulated 	a 	challenge 	to 	the 	career 	offender 	enhancement,
counsel 	is 	not 	deficient 	for 	not 	doing 	so.” 	Mitchell 	v. 	United
States, 2025 U.S. Dist. LEXIS 42208, at *7, 2025 WL 754726, at *3
(M.D. 	Fla. 	Mar. 	10, 	2025); 	see 	Bajorski 	v. 	United 	States, 	276 	F.
App’x 	952, 	954 	(11th 	Cir. 	2008) 	(per 	curiam) 	(“Even 	if 	a 	claim
based upon an anticipated change in the law is reasonably available
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at 	the 	time 	counsel 	failed 	to 	raise 	it, 	such 	failure 	does 	not
constitute 	ineffective 	assistance.”); 	Dell 	v. 	United 	States, 	710
F.3d 	1267, 	1282 	(11th 	Cir. 	2013) 	(“[I]t 	generally 	does 	not 	fall
below 	the 	objective 	standard 	of 	reasonableness 	for 	trial 	counsel
to 	fail 	to 	raise 	a 	claim 	in 	anticipation 	that 	undeniably 	would
lose 	under 	current 	law 	but 	might 	succeed 	based 	on 	the 	outcome 	of
a 	forthcoming 	[appellate] 	decision.”); 	Pitts 	v. 	Cook, 	923 	F.2d
1568, 	1573–74 	(11th 	Cir. 	1991) 	(“[L]awyers 	rarely, 	if 	ever, 	are
required 	to 	be 	innovative 	to 	perform 	within 	the 	wide 	range 	of
conduct 	that 	encompasses 	the 	reasonably 	effective 	representation
mandated by the Constitution.”).
Thus, 	Hickman’s 	failure 	to 	anticipate 	the 	en 	banc 	Eleventh
Circuit’s 	ruling 	in 	Dupree 	does 	not 	constitute 	deficient
performance during Oliver’s sentencing proceedings. 	Accordingly,
Oliver is not entitled to relief with respect to this claim.
C. 	Ineffective Assistance of Appellate Counsel.
Oliver 	similarly 	claims 	that 	Soto 	was 	constitutionally
ineffective for failing to challenge his classification as a career
offender 	under 	the 	guidelines 	based 	on 	the 	argument 	that 	his
instant 	offense 	of 	conviction 	did 	not 	qualify 	as 	a 	controlled
substance offense for purposes of the career offender enhancement.
(Doc. 92 at 9, 35-37). 	Oliver states that his appellate counsel’s
“deficiency is emphasized by the reality that the Eleventh Circuit
granted rehearing en banc in Dupree, more than three months BEFORE
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[Soto] 	filed 	his 	Anders 	brief.” 	(Id. 	at 	36 	(emphasis 	in
original)).
“Claims 	of 	ineffective 	assistance 	of 	appellate 	counsel 	are
governed 	by 	the 	same 	standards 	applied 	to 	trial 	counsel 	under
Strickland.” 	Dell 	v. 	United 	States, 	710 	F.3d 	1267, 	1273 	(11th
Cir. 2013) (quotation omitted). 	To determine whether such a claim
has merit, a court “must decide whether the arguments the defendant
alleges 	his 	counsel 	failed 	to 	raise 	were 	significant 	enough 	to
have affected the outcome of his appeal.” 	United States v. Nyhuis,
211 	F.3d 	1340, 	1344 	(11th 	Cir. 	2000). 	“Appellate 	counsel 	is 	not
ineffective 	for 	failing 	to 	raise 	claims 	reasonably 	considered 	to
be 	without 	merit.” 	Id. 	(quotation 	omitted). 	However, 	if 	“the
omitted 	claim 	would 	have 	had 	a 	reasonable 	probability 	of 	success
on 	appeal, 	then 	counsel’s 	performance 	necessarily 	resulted 	in
prejudice.” 	Joiner v. United States, 103 F.3d 961, 963 (11th Cir.
1997) (per curiam).
Oliver’s appellate counsel was not ineffective for failing to
challenge the district court’s application of the career offender
enhancement. 	As 	Soto 	correctly 	recognized, 	any 	challenge 	to
Oliver’s career offender classification on direct appeal based on
Dupree 	would 	have 	been 	barred 	by 	the 	sentence 	appeal 	waiver 	in
Oliver’s plea agreement, and none of the limited exceptions to the
appeal waiver applied to such a claim.
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A 	defendant 	who 	enters 	into 	a 	plea 	agreement 	may 	waive 	the
right to appeal his conviction or sentence. 	See United States v.
Lewis, 	777 	F. 	App’x 	471, 	471-72 	(11th 	Cir. 	2019) 	(per 	curiam).
Sentence 	appeal 	waivers 	are 	valid 	if 	they 	are 	made 	knowingly 	and
voluntarily. 	Williams v. United States, 396 F.3d 1340, 1342 (11th
Cir. 2005). 	They are enforceable if the Government shows “either
(1) 	the 	district 	court 	specifically 	questioned 	the 	defendant
concerning the sentence appeal waiver during the [plea] colloquy,
or 	(2) 	it 	is 	manifestly 	clear 	from 	the 	record 	that 	the 	defendant
otherwise understood the full significance of the waiver.” 	Id. at
1341 (quoting United States v. Bushert, 997 F.2d 1343, 1351 (11th
Cir. 1993)).
In 	this 	case, 	both 	requirements 	are 	met. 	Oliver’s 	plea
agreement clearly stated that as part of the agreement, Oliver was
“knowingly and voluntarily waiv[ing] the right to file any direct
appeal or any collateral attack, including a motion to vacate, set
aside, 	or 	correct 	sentence 	under 	28 	U.S.C. 	§ 	2255.” 	(Doc. 	62 	at
11-12). 	The 	plea 	agreement 	stated: 	“Accordingly, 	the 	defendant
will not challenge his guilty plea, conviction, or sentence in any
district court or appellate court proceedings.” 	(Id. at 12). 	The
plea agreement made clear that the only exceptions to this waiver
were 	(1) 	a 	direct 	appeal 	challenging 	any 	sentence 	exceeding 	the
statutory 	maximum; 	(2) 	a 	direct 	appeal 	challenging 	any 	sentence
constituting 	an 	upward 	departure 	or 	variance 	from 	the 	advisory
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guideline range; and (3) a direct appeal or § 2255 motion raising
a 	claim 	of 	ineffective 	assistance 	of 	counsel. 	(Id.). 	Oliver
signed the plea agreement directly below a paragraph that stated:
“I have read this Plea Agreement and carefully reviewed every part
of 	it 	with 	my 	attorney. 	I 	understand 	this 	agreement, 	and 	I
voluntarily 	agree 	to 	it.” 	(Id. 	at 	14). 	At 	his 	change-of-plea
hearing, Oliver expressly confirmed under penalty of perjury that
he 	had 	reviewed 	the 	plea 	agreement 	with 	his 	attorney 	before 	he
signed 	it 	and 	understood 	the 	terms 	of 	the 	plea 	agreement. 	(Doc.
88 	at 	4-5). 	The 	Court 	specifically 	addressed 	the 	appeal 	and
collateral 	attack 	waiver 	provision 	in 	the 	plea 	agreement 	and 	its
limited 	exceptions, 	and 	Oliver 	expressly 	acknowledged 	his
understanding 	that 	he 	was 	waiving 	his 	rights 	to 	appeal 	or
collaterally 	attack 	his 	conviction 	or 	sentence 	aside 	from 	the
“certain 	few 	exceptions” 	to 	the 	waiver 	listed 	in 	the 	plea
agreement. 	(Id. at 10-11).
The 	record 	amply 	demonstrates 	that 	Oliver’s 	agreement 	to
plead guilty, including his waiver of the rights to file an appeal
or 	collateral 	attack 	with 	limited 	exceptions, 	was 	knowing 	and
voluntary. 	Indeed, 	in 	its 	opinion 	affirming 	Oliver’s 	conviction
and sentence on direct appeal, the Eleventh Circuit indicated that
Oliver’s knowing and voluntary appeal waiver would bar an appellate
challenge 	to 	his 	designation 	as 	a 	career 	offender 	under 	§ 	4B1.1.
(See Doc. 90 at 4 (“Even if Oliver had challenged his designation
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as a career offender, his appeal waiver would be unaffected by the
government’s 	harmless 	breach 	of 	the 	separate 	safety-valve
provision 	of 	the 	plea 	agreement, 	and 	he 	does 	not 	dispute 	that 	he
knowingly and voluntarily waived his right to appeal his sentence
except in limited circumstances that do not apply.”)).
Thus, 	Oliver’s 	appellate 	counsel 	cannot 	“be 	deemed
ineffective for failing to raise issues [which Oliver] had no legal
right 	to 	raise.” 	See 	United 	States 	v. 	Johnson, 	2009 	WL 	2870221,
at *5 (S.D. Ala. Sept. 1, 2009); see also United States v. Buckner,
808 	F. 	App’x 	755, 	765-66 	(11th 	Cir. 	2020) 	(per 	curiam) 	(finding
that 	defendant’s 	valid 	and 	enforceable 	sentence 	appeal 	waiver
barred 	his 	claim 	that 	he 	was 	improperly 	classified 	as 	a 	career
offender); United States v. Roddy, 2021 U.S. App. LEXIS 34102, at
*21-23, 	2021 	WL 	5356005, 	at 	*8 	(11th 	Cir. 	Nov. 	17, 	2021) 	(per
curiam) 	(same). 	Accordingly, 	Oliver’s 	appellate 	counsel 	was 	not
ineffective for failing to challenge the application of the career
offender enhancement based on Dupree, and Oliver is entitled to no
relief on this ground.
D. 	Career Offender Classification.
Finally, 	Oliver 	raises 	the 	substantive 	claim 	that 	he 	was
misclassified as a career offender, and that his resulting sentence
constitutes 	a 	complete 	miscarriage 	of 	justice. 	(Doc. 	92 	at 	6).
Specifically, Oliver argues that his instant offense of conviction
for conspiracy to possess with the intent to distribute marijuana
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was not a controlled substance offense for purposes of the career
offender enhancement in light of Dupree. 	(Id. at 28-29). 	Oliver’s
claim fails for several reasons.
First, 	Oliver’s 	challenge 	to 	his 	classification 	as 	a 	career
offender 	under 	the 	guidelines 	is 	not 	cognizable 	on 	collateral
review. 	A federal prisoner is entitled to relief under § 2255 if
the court imposed a sentence that (1) violated the Constitution or
laws 	of 	the 	United 	States, 	(2) 	exceeded 	its 	jurisdiction, 	(3)
exceeded the maximum authorized by law, or (4) is otherwise subject
to 	collateral 	attack. 	See 	28 	U.S.C. 	§ 	2255(a); 	McKay 	v. 	United
States, 	657 	F.3d 	1190, 	1194 	n.8 	(11th 	Cir. 	2011). 	“Relief 	under
28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional
rights and for that narrow compass of other injury that could not
have 	been 	raised 	in 	direct 	appeal 	and 	would, 	if 	condoned, 	result
in 	a 	complete 	miscarriage 	of 	justice.’” 	Lynn, 	365 	F.3d 	at 	1232
(citations 	omitted). 	The 	en 	banc 	Eleventh 	Circuit 	has 	held 	that
“erroneously designating a defendant as a career offender . . . is
not 	a 	fundamental 	defect 	that 	inherently 	results 	in 	a 	complete
miscarriage of justice.” 	Spencer v. United States, 773 F.3d 1132,
1138 	(11th 	Cir. 	2014) 	(en 	banc). 	“A 	prisoner 	may 	challenge 	a
sentencing 	error 	as 	a 	‘fundamental 	defect’ 	on 	collateral 	review
when he can prove that he is either actually innocent of his crime
or 	that 	a 	prior 	conviction 	used 	to 	enhance 	his 	sentence 	has 	been
vacated, but . . . [w]hen a federal prisoner, sentenced below the
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statutory 	maximum, 	complains 	of 	a 	sentencing 	error 	and 	does 	not
prove 	either 	actual 	innocence 	of 	his 	crime 	or 	the 	vacatur 	of 	a
prior 	conviction, 	the 	prisoner 	cannot 	satisfy 	the 	demanding
standard that a sentencing error resulted in a complete miscarriage
of justice.” 	Id. at 1139.
Oliver was sentenced to 188 months of imprisonment, four years
of 	supervised 	release, 	and 	no 	fine, 	all 	below 	the 	statutory
maximums. 	(See 	Doc. 	76; 	Doc. 	89 	at 	11-12). 	Thus, 	Oliver 	is
entitled 	to 	§ 	2255 	relief 	from 	his 	sentence 	only 	if 	he 	can 	show
“actual 	innocence 	of 	his 	crime 	or 	the 	vacatur 	of 	a 	prior
conviction.” 	See Spencer, 773 F.3d at 1139. 	Oliver does not claim
that 	any 	of 	his 	prior 	convictions 	on 	which 	the 	career 	offender
enhancement 	was 	based 	have 	been 	vacated. 	Nor 	does 	Oliver 	claim,
much 	less 	point 	to 	new 	evidence 	showing, 	that 	he 	is 	“actually
innocent” 	of 	the 	crime 	to 	which 	he 	pleaded 	guilty 	in 	this 	case.
Instead, Oliver essentially suggests that he is actually innocent
of 	being 	a 	career 	offender 	because 	Dupree 	clarified 	that 	his
instant 	offense 	of 	conviction 	was 	not 	a 	controlled 	substance
offense under the guidelines. 	However, “for purposes of the actual
innocence exception, ‘“actual innocence” means factual innocence,
not mere legal insufficiency.’” 	McKay v. United States, 657 F.3d
1190, 1197 (11th Cir. 2011) (emphasis in original) (quoting Bousley
v. United States, 523 U.S. 614, 623 (1998)). 	“This is true whether
the 	allegation 	of 	actual 	innocence 	is 	of 	the 	crime 	or 	of 	the
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sentence.” 	Id. 	at 	1198. 	Thus, 	the 	Eleventh 	Circuit 	has
“decline[d] 	to 	extend 	the 	actual 	innocence 	of 	sentence 	exception
to claims of legal innocence of a predicate offense justifying an
enhanced sentence,” holding that whether a conviction qualifies as
a 	predicate 	crime 	for 	purposes 	of 	applying 	the 	career 	offender
guidelines enhancement is a “purely legal argument.” 	Id. at 1199
(emphasis 	in 	original). 	Although 	the 	present 	dispute 	involves
whether 	the 	instant 	offense 	of 	conviction 	(as 	opposed 	to 	a 	prior
conviction) 	qualified 	as 	a 	controlled 	substance 	offense 	for
purposes 	of 	applying 	the 	career 	offender 	enhancement, 	the 	same
reasoning applies here. 	Oliver has not claimed that he is actually
innocent of the instant marijuana distribution conspiracy offense
that 	he 	argues 	did 	not 	satisfy 	the 	second 	prong 	of 	§ 	4B1.1(a).
Thus, Oliver has failed to show a “complete miscarriage of justice”
entitling 	him 	to 	relief 	under 	§ 	2255 	from 	being 	sentenced 	as 	a
career offender.
Oliver’s claim is also procedurally defaulted because he did
not 	raise 	it 	at 	sentencing 	or 	on 	direct 	appeal. 	“Under 	the
procedural 	default 	rule, 	a 	defendant 	generally 	must 	advance 	an
available challenge to a criminal conviction or sentence on direct
appeal or else the defendant is barred from presenting that claim
in a § 2255 proceeding.” 	Lynn, 365 F.3d at 1234; see also Greene
v. 	United 	States, 	880 	F.2d 	1299, 	1305 	(11th 	Cir. 	1989) 	(“In
general, 	a 	defendant 	must 	assert 	an 	available 	challenge 	to 	a
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sentence on direct appeal or be barred from raising the challenge
in 	a 	section 	2255 	proceeding.”). 	“A 	ground 	of 	error 	is 	usually
‘available’ 	on 	direct 	appeal 	when 	its 	merits 	can 	be 	reviewed
without further factual development.” 	Mills v. United States, 36
F.3d 1052, 1055 (11th Cir. 1994) (per curiam).
If 	a 	defendant 	fails 	to 	pursue 	an 	available 	claim 	on 	direct
appeal, 	he 	can 	avoid 	the 	procedural 	bar 	only 	by 	establishing 	one
of two exceptions to the procedural default rule. 	“Under the first
exception, 	a 	defendant 	must 	show 	cause 	for 	not 	raising 	the 	claim
of 	error 	on 	direct 	appeal 	and 	actual 	prejudice 	from 	the 	alleged
error.” 	Lynn, 365 F.3d at 1234 (emphasis in original). 	Under the
second exception, a court will consider “a procedurally defaulted
claim, 	without 	a 	showing 	of 	cause 	or 	prejudice, 	to 	correct 	a
fundamental 	miscarriage 	of 	justice.” 	Fortenberry 	v. 	Haley, 	297
F.3d 	1213, 	1222 	(11th 	Cir. 	2002) 	(per 	curiam). 	To 	meet 	this
standard, a petitioner must show that “a constitutional violation
has 	probably 	resulted 	in 	the 	conviction 	of 	one 	who 	is 	actually
innocent.” 	Lynn, 365 F.3d at 1234 (quotation omitted).
Oliver 	did 	not 	challenge 	that 	the 	instant 	offense 	of
conviction 	met 	the 	definition 	for 	a 	controlled 	substance 	offense
for purposes of the career offender enhancement before the district
court 	or 	on 	direct 	appeal. 	Therefore, 	Oliver 	is 	barred 	from
raising 	this 	claim 	in 	his 	§ 	2255 	motion, 	unless 	he 	can 	establish
an exception to the procedural default rule.
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“[A] 	prisoner 	collaterally 	attacking 	his 	conviction 	can
establish cause for a procedural default if he can show that ‘some
objective factor external to the defense impeded counsel’s efforts
to comply with the . . . procedural rule,’ or that his attorney’s
performance 	failed 	to 	meet 	the 	Strickland 	standard 	for 	effective
assistance 	of 	counsel.” 	Reece 	v. 	United 	States, 	119 	F.3d 	1462,
1465 (11th Cir. 1997) (citation omitted).
Oliver 	asserts 	ineffective 	assistance 	of 	sentencing 	and
appellate 	counsel 	as 	cause 	for 	his 	defaulted 	claim. 	(Doc. 	99 	at
7). 	However, 	ineffective 	assistance 	of 	counsel 	can 	satisfy 	the
cause 	exception 	to 	a 	procedural 	bar 	only 	if 	the 	ineffective
assistance 	of 	counsel 	claim 	itself 	has 	merit. 	United 	States 	v.
Nyhuis, 	211 	F.3d 	1340, 	1344 	(11th 	Cir. 	2000). 	As 	set 	out 	above,
Oliver’s 	sentencing 	and 	appellate 	counsel 	did 	not 	render
ineffective 	assistance 	by 	failing 	to 	challenge 	that 	Oliver’s
instant offense of conviction qualified as a controlled substance
offense 	for 	purposes 	of 	the 	career 	offender 	enhancement.
Therefore, Oliver cannot satisfy the cause and prejudice standard
based on his attorneys’ alleged ineffectiveness in failing to raise
the 	claim 	before 	the 	district 	court 	or 	on 	direct 	appeal 	because
his claims of ineffective assistance have no merit.
The miscarriage of justice, or actual innocence, exception to
the procedural default rule is also unavailing to Oliver. 	Oliver
does 	not 	point 	to 	new 	evidence 	showing 	that 	he 	is 	“actually
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innocent” 	of 	the 	crime 	to 	which 	he 	pleaded 	guilty 	in 	this 	case,
nor 	does 	he 	make 	a 	claim 	of 	factual 	innocence 	of 	the 	prior 	state
convictions 	that 	served 	as 	predicate 	crimes 	of 	violence 	for
purposes 	of 	the 	career 	offender 	enhancement. 	Instead, 	Oliver
contends that his alleged “misclassification as a career offender
is a complete miscarriage of justice.” 	(Doc. 99 at 7). 	However,
as 	already 	explained, 	whether 	a 	conviction 	qualifies 	as 	a
controlled 	substance 	offense 	for 	purposes 	of 	applying 	the 	career
offender 	guidelines 	enhancement 	is 	a 	purely 	legal 	argument, 	and
the miscarriage of justice, or actual innocence, exception to the
procedural 	default 	rule 	requires 	factual 	innocence. 	McKay, 	657
F.3d 	at 	1196-97, 	1199. 	Consequently, 	Oliver’s 	substantive
challenge 	to 	his 	sentence 	under 	the 	guidelines 	career 	offender
enhancement is barred by the procedural default rule.
Finally, 	Oliver’s 	challenge 	to 	the 	district 	court’s
application 	of 	the 	career 	offender 	enhancement 	under 	the
guidelines 	is 	barred 	because 	he 	knowingly 	and 	voluntarily 	waived
his 	right 	to 	collaterally 	attack 	his 	sentence 	as 	part 	of 	a 	valid
plea agreement. 	A defendant who enters into a plea agreement may
waive the right to collaterally attack his sentence under § 2255.
See 	Fed. 	R. 	Crim. 	P. 	11(b)(1)(N). 	Collateral 	attack 	waivers 	are
valid 	if 	they 	are 	made 	knowingly 	and 	voluntarily. 	Williams, 	396
F.3d at 1342. 	They are enforceable if the Government shows “either
(1) 	the 	district 	court 	specifically 	questioned 	the 	defendant
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concerning 	the 	[collateral 	attack] 	waiver 	during 	the 	[plea]
colloquy, 	or 	(2) 	it 	is 	manifestly 	clear 	from 	the 	record 	that 	the
defendant 	otherwise 	understood 	the 	full 	significance 	of 	the
waiver.” 	Id. at 1341 (quoting Bushert, 997 F.2d at 1351).
As 	the 	Court 	has 	already 	found 	with 	respect 	to 	Oliver’s
accompanying 	sentence 	appeal 	waiver, 	both 	of 	these 	requirements
are 	met 	in 	this 	case. 	The 	record 	clearly 	shows 	that 	Oliver’s
agreement 	to 	plead 	guilty, 	including 	his 	waiver 	of 	the 	rights 	to
appeal or collaterally attack his sentence except under the limited
circumstances 	enumerated 	in 	the 	plea 	agreement, 	was 	knowing 	and
voluntary. 	Oliver’s 	challenge 	to 	his 	classification 	as 	a 	career
offender 	under 	the 	guidelines 	is 	not 	among 	the 	exceptions 	to 	the
collateral 	attack 	waiver. 	Therefore, 	Oliver’s 	substantive
challenge 	to 	his 	career 	offender 	classification 	under 	the
guidelines 	is 	barred 	by 	the 	collateral 	attack 	waiver 	in 	his 	plea
agreement and is also due to be denied on that basis.
For 	all 	of 	the 	foregoing 	reasons, 	Oliver 	is 	entitled 	to 	no
relief with respect to this claim.
IV. CERTIFICATE OF APPEALABILITY
Pursuant 	to 	Rule 	11(a) 	of 	the 	Rules 	Governing 	Section 	2255
Proceedings, 	the 	undersigned 	recommends 	that 	a 	certificate 	of
appealability in this case be DENIED. 	See Rules Governing § 2255
Proceedings, 	R. 	11(a) 	(“The 	district 	court 	must 	issue 	or 	deny 	a
certificate of appealability when it enters a final order adverse
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to 	the 	applicant.”). 	The 	habeas 	corpus 	statute 	makes 	clear 	that
an 	applicant 	is 	entitled 	to 	appeal 	a 	district 	court’s 	denial 	of
his 	habeas 	corpus 	petition 	only 	where 	a 	circuit 	justice 	or 	judge
issues a certificate of appealability. 	See 28 U.S.C. § 2253(c)(1).
A 	certificate 	of 	appealability 	may 	be 	issued 	only 	where 	“the
applicant 	has 	made 	a 	substantial 	showing 	of 	the 	denial 	of 	a
constitutional right.” 	Id. at § 2253(c)(2).
When 	a 	habeas 	petition 	is 	dismissed 	on 	procedural 	grounds
without reaching the merits of an underlying constitutional claim,
a 	certificate 	of 	appealability 	“should 	issue 	[only] 	when 	the
prisoner 	shows, 	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.” 	Slack 	v. 	McDaniel, 	529 	U.S. 	473, 	484 	(2000). 	When 	a
habeas 	petition 	is 	denied 	on 	the 	merits 	of 	the 	underlying
constitutional 	claims, 	a 	certificate 	of 	appealability 	may 	issue
only 	when 	the 	petitioner 	demonstrates 	“that 	reasonable 	jurists
would 	find 	the 	district 	court’s 	assessment 	of 	the 	constitutional
claims debatable or wrong.” 	Id. at 483-84 (“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 	. 	. 	.
includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved
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in 	a 	different 	manner 	or 	that 	the 	issues 	presented 	were 	adequate
to 	deserve 	encouragement 	to 	proceed 	further.”) 	(quotation
omitted); accord Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
After 	reviewing 	the 	issues 	presented 	in 	light 	of 	the
applicable standards, the Court concludes that reasonable jurists
would not find the Court’s disposition of Oliver’s claims wrong or
debatable, 	and 	that 	none 	of 	the 	issues 	presented 	are 	adequate 	to
deserve encouragement to proceed further. 	As a result, Oliver is
not 	entitled 	to 	a 	certificate 	of 	appealability 	and 	should 	not 	be
permitted to proceed in forma pauperis on appeal.
V. CONCLUSION
For the foregoing reasons, it is recommended that Petitioner
Marquis 	Kewon 	Oliver’s 	motion 	under 	28 	U.S.C. 	§ 	2255 	to 	vacate,
set aside, or correct his sentence (Doc. 92) be DENIED, that this
action 	be 	DISMISSED 	with 	prejudice, 	and 	that 	judgment 	be 	entered
in favor of Respondent, the United States of America, and against
Petitioner, Marquis Kewon Oliver. 	It is further recommended that
any requests for a certificate of appealability or for permission
to appeal in forma pauperis be DENIED.
NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to 	this 	recommendation 	or 	anything 	in 	it 	must, 	within 	fourteen
(14) 	days 	of 	the 	date 	of 	service 	of 	this 	document, 	file 	specific
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written objections with the Clerk of this Court. 	See 28 U.S.C. §
636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72(b); 	S.D. 	Ala. 	GenLR 	72(c). 	The
parties 	should 	note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a]
party 	failing 	to 	object 	to 	a 	magistrate 	judge’s 	findings 	or
recommendations 	contained 	in 	a 	report 	and 	recommendation 	in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to 	factual 	and 	legal 	conclusions 	if 	the 	party 	was
informed of the time period for objecting and the consequences on
appeal 	for 	failing 	to 	object. 	In 	the 	absence 	of 	a 	proper
objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” 	11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific 	finding 	or 	recommendation 	to 	which 	objection 	is 	made,
state 	the 	basis 	for 	the 	objection, 	and 	specify 	the 	place 	in 	the
Magistrate 	Judge’s 	report 	and 	recommendation 	where 	the 	disputed
determination is found. 	An objection that merely incorporates by
reference 	or 	refers 	to 	the 	briefing 	done 	by 	the 	Magistrate 	Judge
is not specific.
DONE this 12th day of August, 2025.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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