Eleventh Circuit Rejects Actual Innocence Claim From Defendant Challenging Career Offender Sentence – McKay v. U.S.

September 28, 2011 by David S. Seltzer

As a weapons violations defense lawyer in Miami, I was interested to read about a Florida defendant who argued that a concealed weapons violation was not enough to enhance his sentence for being a career offender. In McKay v. United States, Torey McKay was charged with possession and distribution of both cocaine and crack. His sentence for these charges was enhanced by his past convictions for selling cocaine and for carrying a concealed weapon, which the court called a crime of violence. This inflated his minimum sentence by more than nine years. He argued that because carrying a concealed weapon is not a crime of violence, his sentence should be set aside or reduced. But the Eleventh U.S. Circuit Court of Appeals found that McKay had failed to bring up a necessary argument on appeal, so it affirmed the sentence.

McKay pleaded guilty in 2005 to four drug charges without a plea agreement. He was ultimately sentenced to the lowest sentence in the range for career offenders, 262 months. He did not object at the time to the career offender designation. However, in 2007, the Sentencing Commission allowed retroactive changes to sentences for crack offenders, and McKay moved pro se to have his sentence reduced. The district court denied this because of McKay’s status as a career offender. He did not appeal. In 2008, the Supreme Court found that an alcohol DUI is not a violent felony under the Armed Career Criminal Act, and the Eleventh Circuit followed with a ruling extending the Supreme Court’s logic to sentencing guidelines for crimes of violence, finding that carrying a concealed weapon is not a crime of violence. McKay moved pro se to set aside or correct his sentence under these new rulings. Insofar as the argument had been foreclosed by his failure to make it earlier, he argued that he should be excused for this procedural error on the grounds of “actual innocence” of the career offender designation. The trial court denied it, and McKay appealed.

The Eleventh Circuit sided with the trial court, finding that McKay’s claim of sentencing error was barred because it was procedurally defaulted by his failure to bring it up earlier. Thus, the Eleventh expressly declined to reach the issue of whether a sentencing claim is cognizable under the relevant section of law. Under the procedural default rule, defendants like McKay must make their arguments on direct appeal, or they cannot use them as the basis for a motion to change a sentence. The Eleventh said it was “beyond question” that McKay did not make his claim on direct appeal; he filed no direct appeal. McKay acknowledged that, arguing that he should be excused on the grounds that he is actually innocent of the sentence enhancement for being a career offender. Actual innocence can apply to actual innocence of a capital sentence, but circuit courts have divided on whether it applies to non-capital sentences. The Eleventh declined to take a side in this split, instead ruling that McKay’s claim fails regardless because his claim is one of legal innocence, not factual innocence. He was not factually innocent of carrying a concealed weapon, the court reasoned; he was arguing that that crime is not legally sufficient to make him a career offender. Thus, he could not claim the factual innocence exception, the appeals court said, and his claim was barred by its procedural defect.

As a Fort Lauderdale drug crimes criminal defense attorney, I am disappointed that the Eleventh Circuit declined to reach the merits of this defendant’s claim. If McKay were sentenced for the same crimes today, he would likely face far less time in prison than the total of nearly 22 years he faces — thanks to the decisions on crack sentencing and career offender status. This may not be the “miscarriage of justice” the Eleventh Circuit says actual innocence claims should be, but surely it doesn’t make much sense that sentences continue even after those who make the sentences change the rules. Unfortunately, one of the best ways to avoid facing this kind of overwhelming sentence is to avoid being convicted in the first place, which is why people facing serious drug and weapons charges should talk to a south Florida criminal defense lawyer as soon as they realize they will be charged.

Based in Miami, Seltzer Law, P.A., represents people across Florida who are facing serious criminal charges. We answer our clients’ calls 24 hours a day and seven days a week, because we know criminal trouble happens all the time, not just from 9 to 5. For a free, confidential case evaluation, send us a message online or call toll-free anytime at 1-888-THE-DEFENSE (1-888-843-3333).

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