USA v. Floyd, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA, 	CASE NO. 3:22 CR 219
Plaintiff,
v. 	JUDGE JAMES R. KNEPP II
MARQUES FLOYD,
MEMORANDUM OPINION AND
Defendant. 	ORDER
I NTRODUCTION
Currently pending before the Court is Defendant Marques Floyd’s Motion to Vacate under
28 U.S.C. § 2255. (Doc. 123). The Government filed a response in opposition (Doc. 126) and
Floyd replied (Doc. 131). For the reasons set forth below, the Court denies Floyd’s motion.
BACKGROUND
Floyd was charged in a six-count Superseding Indictment on April 5, 2023. (Doc. 32). The
Indictment charged: (1) conspiracy to distribute and possession with intent to distribute controlled
substances, in violation of 21 U.S.C. § 846 (Count 1); (2) possession with intent to distribute a
controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Count 2); (3) kidnapping, in violation
of 18 U.S.C. § 1201(a)(1) and (2) (Count 3); (4) using or carrying a firearm during and in relation
to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 4); (5) possession with intent
to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count 5);
and (6) felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count
6). Id.
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 1 of 12. PageID #: <pageID>

2
On March 28, 2024, Floyd pled guilty, pursuant to a binding Federal Rule of Criminal
Procedure 11(c)(1)(C) plea agreement, to all six of the charges. (Doc. 91) (Plea Agreement). A
week prior, at a pretrial conference, the Government also summarized terms of the proposed
agreement, including that it was a binding agreement and specifically that it would provide an
agreed maximum sentence of 308 months. (Doc. 103, at 6-8). At that hearing, the Court further
explained what a binding plea agreement was. Id. at 9-10.
In the final Agreement, the parties agreed Floyd’s sentence should not exceed 308 months.
Id. at 6. The Plea Agreement also contained a waiver of appeal and post-conviction attack, with
specific limited exceptions:
WAIVER OF APPEAL AND POST-CONVICTION ATTACK
19. Defendant acknowledges having been advised by counsel of Defendant’s rights,
in limited circumstances, to appeal the conviction or sentence in this case, including
the appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or
sentence collaterally through a post-conviction proceeding, including a proceeding
under 28 U.S.C. § 2255. Defendant expressly and voluntarily waives those rights,
except as specifically reserved below. Defendant reserves the right to appeal: (a)
any punishment in excess of the statutory maximum; or (b) any sentence to the
extent it exceeds the maximum of the sentencing imprisonment range determined
under the advisory Sentencing Guidelines in accordance with the sentencing
stipulations and computations in this agreement, using the Criminal history
Category found applicable by the Court. Nothing in this paragraph shall act as a bar
to Defendant perfecting any legal remedies Defendant may otherwise have on
appeal or collateral attack with respect to claims of ineffective assistance of counsel
or prosecutorial misconduct.
(Doc. 91, at 7-8).
At the change of plea hearing, the Court explained Floyd was waiving most appellate
rights:
THE COURT: If you went to trial and if you were convicted, you’d have the ability
to take an appeal, okay. Even if you plead guilty here today, you’ll still have some
appellate rights, but you are waiving a lot of them in this Plea Agreement if you
enter into it. There’s certain appellate rights that you just can’t waive, and those are
things based on like your own attorney being ineffective, or the government
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 2 of 12. PageID #: <pageID>

3
attorney engaging in misconduct, or me doing something out of bounds, you know,
either above the guideline range or above the statute.
So there are certain appellate rights that you still have, but most of them you are
waiving, okay; do you understand that?
THE DEFENDANT: Yes, sir.
(Doc. 104, at 21-22). Also at the change of plea hearing, the Assistant United States Attorney
(“AUSA”) summarized the waiver paragraph in the Plea Agreement as follows:
Paragraph 19 is waiver of appeal. The defendant, through this agreement, agrees to
waive any rights conferred upon [him] either through the appeals process or post-
conviction 	except 	for 	the 	specific 	circumstances 	listed 	now. 	That 	is, 	any
punishment exceeded - - I’m sorry, in excess of the statutory maximum. The
maximum here is life, so that’s - - so that’s sort of not applicable. That any sentence
to the extent it exceeds the sentencing guideline recommended by the parties. And
that the defendant always has the right to appeal prosecutorial misconduct or
ineffective assistance of counsel, defense counsel.
Id. at 39. After the AUSA summarized this and other provisions of the Plea Agreement, the Court
had the following colloquy with Floyd:
THE COURT: Is that all what you were thinking was going to be in there, Mr.
Floyd?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Are you in a position to be able to make that deal with me
where you put your initials at the bottom right corner of every page to tell me I
understand every word on this page and I agree with it?
THE DEFENDANT: Yes, sir.
Id. at 41-42. Floyd then initialed each page, including the pages containing the waiver. Id. at 42;
Doc. 91, at 7-8.
The final presentence investigation report (“PSR”) grouped Counts 1, 2, 5, and 6 for
Guidelines calculation purposes, but excluded Count 3 (kidnapping). (Doc. 85, at 7). Count 4
(using or carrying a firearm during and in relation to a drug trafficking crime) separately carried a
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 3 of 12. PageID #: <pageID>

4
mandatory consecutive ten year sentence and was also excluded from grouping. Id. The PSR
calculated Floyd’s total offense level as 41 and his criminal history category of III. Id. at 10, 18.
Floyd faced the following statutory penalties: Count 1 carried a minimum of 5 years and a
maximum of 40 years; Count 2 carried a maximum of20 years; Count 3 carried a maximum term
of life; Count 4 carried a minimum of 10 years, maximum of life, to be served consecutively to
any other term of imprisonment; Count 5 carried a minimum of 5 years, and a maximum of 40
years; and Count 6 carried a maximum of 10 years. See id. at 24. Floyd’s Guidelines range based
on a total offense level of 41 and criminal history category III was 360 months to life. Id. The
Guideline for Count 4 was the 10 year minimum required by statute. Id.
On August 22, 2024, this Court accepted the Plea Agreement and sentenced Floyd to 308
months imprisonment. (Doc. 92); see also Doc. 99 (sentencing transcript). This sentence consisted
of 188 months as to Counts 1, 2, 3, and 5 and 120 months as to Count 6, to be served concurrently
with Counts 1, 2, 3, ant 5; and 120 months as to Count 4 to be served consecutively to all other
counts. (Doc. 92, at 2). In its Statement of Reasons, the Court noted the sentence was below the
Guideline range pursuant to the binding plea agreement. (Doc. 93, at 3).
Floyd filed a timely notice of appeal on August 26, 2024. (Doc. 94); see United States v.
Floyd, No. 24-3756 (6th Cir.). On December 10, 2024, appellate counsel filed an Anders brief,
stating that she found no non-frivolous issues to present, and moved to withdraw. The Sixth Circuit
granted appellate counsel’s motion on March 13, 2025, and affirmed this Court’s judgment. In its
Order, the court found Floyd’s guilty plea and appeal waiver were knowing, intelligent, and
voluntary and thus “preclude[d] . . . review of his conviction and sentence except as reserved.”
United States v. Floyd, No. 24-3756 (6th Cir. Mar. 13, 2025).
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 4 of 12. PageID #: <pageID>

5
In the instant 1 Motion to Vacate, filed May 27, 2025, Floyd asserts two grounds for relief:
GROUND ONE: 	Whether drug trafficking conspiracy under 21 USC § 846,
an inchoate offense that fails to define the mandatory substantive elements qualifies
as a Control[led] Substance Offense.
GROUND TWO: 	Whether using and carrying a firearm in furtherance of a
drug trafficking offense is criminalized by 18 U.S.C. § 924(c).
(Doc. 123, at 4, 6).
STANDARD OF REVIEW
Under § 2255, “[a] prisoner in custody under sentence of a [federal] court . . . claiming the
right to be released . . . may move the court which imposed the sentence to vacate, set aside[,] or
correct the sentence.” 28 U.S.C. § 2255(a). A court must vacate and set aside a sentence if it
concludes the “judgment was rendered without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack.” Id. at § 2255(b). To “obtain collateral relief a prisoner must clear a significantly
higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982);
see also Hampton v. United States, 191 F.3d 695, 698 (6th Cir. 1999).
“A prisoner seeking relief under § 2255 must show as a basis for relief: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact
or law that was so fundamental as to render the entire proceeding invalid.” Pough v. United States,
442 F.3d 959, 964 (6th Cir. 2006) (citation modified). To obtain relief for an error of constitutional
magnitude, a petitioner must establish that error “had a substantial and injurious effect or influence
1. While Floyd’s direct appeal was pending, the Court received a § 2255 Motion to Vacate signed
by Antwan Henry. (Doc. 108). The Court granted the Government’s motion to dismiss the petition
without prejudice as it was improperly filed. (Doc. 118). The Court later denied a motion for
reconsideration filed by Floyd. (Doc. 122).
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 5 of 12. PageID #: <pageID>

6
on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)). To obtain relief for a non-constitutional claim, a
petitioner must establish that a fundamental defect in the proceeding resulted in a complete
miscarriage of justice or an egregious error that deprived him of the “rudimentary demands of fair
procedure.” Reed v. Farley, 512 U.S. 339, 348 (1994) (citation omitted); see also id. at 354.
In considering a petition under § 2255, the district court is required to conduct an
evidentiary hearing to determine the issues and make findings of fact and conclusions of law
“[u]nless the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). The petitioner’s burden for obtaining a hearing is
relatively light. Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003). But “no hearing is
required if the petitioner’s allegations ‘cannot be accepted as true because they are contradicted by
the record, inherently incredible, or conclusions rather than statements of fact.’” Arredondo v.
United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238,
240 (8th Cir. 1995)). Where the judge considering the § 2255 petition also conducted the
proceedings below, the judge may rely on his or her recollections of those proceedings. See id.
DISCUSSION
Floyd brings two claims for relief. The Government contends (1) both are without merit,
and (2) both are waived by the Plea Agreement. The Court agrees with the Government on both
points.
Waiver
“Generally, 	a 	voluntary 	and 	unconditional 	guilty 	plea 	‘bars 	any 	subsequent 	non-
jurisdictional attack on the conviction.’” United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012)
(quoting United States v. Martin, 526 F.3d 926, 932 (6th Cir. 2008)). And “[a] defendant may
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 6 of 12. PageID #: <pageID>

7
waive any right, even a constitutional one, in a plea agreement, if he relinquishes that right
knowingly and voluntarily.” Portis v. United States, 33 F.4th 331, 334-35 (6th Cir. 2022) (citing
Brady v. United States, 397 U.S. 742, 748 (1970)); see also United States v. Smith, 344 F.3d 479,
483 (6th Cir. 2003) (“[A] defendant in a criminal case may waive his right to appeal his sentence
in a valid plea agreement.”). “It follows that a defendant may waive his right to bring future
postconviction challenges, which are not constitutionally required, so long as the waiver is
knowing and voluntary.” Portis, 33 F.4th at 335 (citing Watson v. United States, 165 F.3d 486,
489 (6th Cir. 1999)).
Here, at the change of plea hearing, the Court explained Floyd was waiving most appellate
rights (Doc. 104, at 21-22), and the AUSA’s summary also accurately described the waiver in
paragraph 19 of the Plea Agreement, id. at 39. Floyd agreed that he understood what was in the
Agreement and initialed each page, including the ones containing the waiver. Id. at 41-42; Doc.
91, at 7-8. The Sixth Circuit has explained that such agreement, or a “‘yes’ answer generally
suffices to show that a defendant acted in a knowing and voluntary way.” United States v. Ellis,
115 F.4th 497, 502 (6th Cir. 2024) (citing United States v. Jones, 403 F.3d 817, 823 (6th Cir.
2005)). And, indeed, nowhere in Floyd’s Motion or his Reply does he claim any lack of
understanding or lack of voluntariness of this appellate and post-conviction attack waiver. See
Docs. 123, 131. Moreover, on direct appeal, the Sixth Circuit (after reviewing counsel’s Anders
brief), affirmed Floyd’s conviction, specifically citing the above exchanges at the plea colloquy
and finding that “[t]he record shows that Floyd’s guilty plea and waiver were knowing, voluntary,
and intelligent.” United States v. Floyd, No. 24-3756 (6th Cir. Mar. 13, 2025). It concluded that
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 7 of 12. PageID #: <pageID>

8
the “appeal waiver is therefore valid and precludes our review of his conviction and sentences
except as reserved.” Id.
Moreover, such a waiver encompasses the claims Floyd wishes to raise here. The broad
waiver Floyd signed had three exceptions: (1) a sentence in excess of the statutory maximum or in
excess of the maximum sentencing range determined under the Sentencing Guidelines; (2) claims
of ineffective assistance of counsel; and (3) prosecutorial misconduct. (Doc. 91, at 7-8). Floyd
makes no such claims. The 308-month sentence was below both the statutory maximum of life
imprisonment and below the Guideline sentencing range of 360 months to life. Floyd does not
argue either ineffective assistance of counsel or prosecutorial misconduct in his grounds for relief.
In Ground One, he challenges whether the conspiracy charge (Count 1) is a “controlled substances
offense” and the sufficiency of the indictment on that basis. (Doc. 123, at 4-5). In Ground Two,
Floyd challenges the sufficiency of the indictment on Count 4, using or carrying a firearm during
and in relation to a drug trafficking crime. Id. at 6. The Sixth Circuit has specifically held “criminal
defendants can both forfeit and waive this type of indictment challenge.” Ellis, 115 F. 4th at 504
(“And Ellis’s claim that the indictment failed to adequately allege a violation of § 924(c) goes only
to the merits of the case. Ellis thus could waive this argument by entering into a plea agreement
with an appeal waiver that covered it.”) (citation modified).
The Court therefore finds Plaintiff’s Motion to Vacate is barred by the waiver contained in
his Plea Agreement and can be dismissed on that basis alone.
Merits
Even if the Court were to reach the merits of Floyd’s claims, he would not be entitled to
the relief he seeks.
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 8 of 12. PageID #: <pageID>

9
Ground One
In Ground One, Floyd seemingly challenges his conviction on Count 1 of the indictment,
conspiracy to distribute and possession with intent to distribute controlled substances in violation
of 21 U.S.C. § 846. See Doc. 123, at 4-5. He contends this offense does not qualify as a
“Control[led] Substance Offense” in the definition provided by United States Sentencing
Guideline (“USSG”) § 4B1.2. Id. at 4. He further contends that his conviction for conspiracy to
distribute and possession with intent to distribute fentanyl and heroin “do[] not contain the
necessary substantive elements to support conspiracy as a predicate offense.” Id.
First, Floyd’s reliance on § 4B1.2 is misplaced. USSG § 4B1.2, which relates to criminal
history enhancements under the Guidelines for prior controlled substance offenses, was not used
in this case. See Doc. 85 (PSR). Second, although Petitioner contends there is some defect in the
indictment for failing to charge the elements of the conspiracy offense, he does not explain what
is missing:
[W]e see in the instant case the government failed to charge the elements of
Conspiracy which fails to charge the offense and must be vacated in the interest of
justice as it has created a manifest injustice.
Specifically, the defendant must be placed on notice of the charges he must
defend against in court, the indictment must allege all material elements of the
offense thereby placing defendant on notice of the elements of the charge/offense
he faces. A failure to establish the elemen[ts] of the offense charged violates
defendant’s due process. It is therefore, a baseless contention to suggest that
conspiracy to distribute heroin and cocaine is a controlled substances[.] [T]o sum
it up, the necessary substantive elements that make up the offense are missing
thereby failing to charge the offense and must be vacated as a matter of law and
fairness.
(Doc. 131, at 2-3). The Sixth Circuit has explained:
Stated succinctly, a drug conspiracy requires the government to show that two or
more individuals have agreed to violate a drug law (such as § 841(a)(1)’s ban on
distributing drugs) and that the defendant knowingly and voluntarily entered into
this agreement. This drug-conspiracy test comports with the usual understanding of
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 9 of 12. PageID #: <pageID>

10
a “conspiracy,” “the essence of which is an agreement to commit an unlawful act.”
Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).
United States v. Wheat, 988 F.3d 299, 306 (6th Cir. 2021) (citation omitted). Here, the Superseding
Indictment charged these elements:
From in or around April 2021 to in or around May 2022, in the Northern District of
Ohio, Western Division, and elsewhere, Defendant MARQUES FLOYD, did
knowingly and intentionally combine, conspire, confederate, and with diverse
others known and unknown to the Grand Jury, to distribute and possess with the
intent to distribute 40 grams or more of a mixture and substance containing a
detectable amount of fentanyl, a Schedule II controlled substance, in violation of
Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B).
(Doc. 32, at 1). The Superseding Indictment then elaborated on the manner and means of the
conspiracy and acts in furtherance. Id. at 1-3. Contrary to Floyd’s contention, therefore, the
Indictment charged the elements of the 21 U.S.C. § 846 offense. 2
Ground Two
In Ground Two of his Motion, Floyd challenges his conviction under 18 U.S.C. § 924(c).
(Doc. 123, at 6). That statute provides:
[A]ny person who, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be prosecuted in a court of
the United States, uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime
2. The Government posits that Floyd may be confusing whether drug conspiracy is a “drug
trafficking crime” as defined in the Sentencing Guidelines, rather than a “controlled substance
offense.” (Doc. 126). His Reply makes clear that he is not. In Reply, Floyd continues to argue
conspiracy is not a “controlled substance offense” under § 4B1.2. See Doc. 131. If Floyd is arguing
that drug conspiracy is not a “drug trafficking crime”, he is also incorrect. See 18 U.S.C. §
924(c)(2) (“For purposes of this subsection, the term ‘drug trafficking crime’ means any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances
Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of Title 46.”). Drug Conspiracy in
violation of 21 U.S.C. § 846 is part of the Controlled Substances Act.
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 10 of 12. PageID #: <pageID>

11
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less
than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less
than 10 years.
18 U.S.C. § 924(c)(1)(A). As Floyd alludes to, § 924(c) contains two distinct crimes: (1) using or
carrying a firearm during and in relation to a drug trafficking crime or crime of violence; and (2)
possessing a firearm in furtherance of the same. (Doc. 123, at 6); see also Ellis, 115 F.4th at 499-
500 (6th Cir. 2024) (“Under our caselaw, § 924(c)’s language contains two different offenses: both
‘using or carrying a firearm’ ‘during and in relation to’ a ‘crime of violence [or drug trafficking
crime]’ and ‘possessing a firearm’ ‘in furtherance of’ a ‘crime of violence [or drug trafficking
crime].’”) (citation modified).
Floyd contends the indictment conflates the two separate offenses. However, as the
Government correctly identifies, Count 4 of the Superseding Indictment in this case charged Floyd
with only the elements of the first § 924(c) offense described above:
On or about July 10, 2021, in the Northern District of Ohio, Western Division,
Defendant, MARQUES FLOYD, did use or carry and discharge a firearm, during
and in relation to a drug trafficking crime, which may be prosecuted in a court of
the United States . . .
(Doc. 32, at 4) (emphasis added).
In Reply, Floyd contends:
In the instant case the Rule 11 hearing did not clarify this duplicious [sic] charge.
To the contrary the magistrate judge, during the hearing combined elements of the
sep[a]rate use and carry and possession offense, expressly authorizing a conviction
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 11 of 12. PageID #: <pageID>

12
for which Floyd pled guilty to us[]ing and carrying and possessing a firearm in
furtherance of a drug trafficking crime.
(Doc. 131, at 3). However, at the change of plea hearing, the AUSA summarized this count as:
“using or carrying a firearm during and in relation to a drug trafficking crime.” (Doc. 104, at 15).
When asking Floyd how he pled to this charge, the Court asked: “And what is your plea to Count
4 of the complaint [sic], using or carrying a firearm during and in relation to a drug trafficking
crime?” Id. at 49. And, finally, the Plea Agreement expressly describes the offense as “Using or
Carrying a Firearm During and In Relation to a Drug Trafficking Crime” in two places. (Doc. 91,
at 2, 5). Floyd’s second ground is therefore not well-taken.
Floyd’s challenge to Counts 1 and 4 of the Superseding Indictment would therefore fail on
the merits even if he could overcome the Plea Agreement waiver.
CONCLUSION
For the foregoing reasons, good cause appearing, it is
ORDERED that Floyd’s Motion to Vacate (Doc. 123) be, and the same hereby is,
DENIED;
FURTHER ORDERED that, because Floyd has not made a substantial showing of a denial
of a constitutional right directly related to his conviction or custody, no certificate of appealability
shall issue. 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b).
s/ James R. Knepp II
UNITED STATES DISTRICT JUDGE
Dated: December 2, 2025
Case: 3:22-cr-00219-JRK Doc #: 133 Filed: 12/02/25 12 of 12. PageID #: <pageID>