United States v. Michael Bernard Lawson ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14776
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL BERNARD LAWSON,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00375-JA-CPT-1
____________________
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2 Opinion of the Court 20-14776
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Michael Lawson appeals his total sentence of 120 months’
imprisonment for possessing firearms as a felon and distributing
cocaine base. Lawson argues first that the district court erred by
categorizing him as a career offender because the
Shepard1documents for one of his prior offenses were inconsistent
and did not plainly speak to his prior conviction. Second, Lawson
argues that the court improperly imposed a firearm enhancement
pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because the firearms he
possessed and sold were not connected to his drug offenses. Third,
Lawson argues that the district court should have found sentencing
factor manipulation because law enforcement officers did not
arrest him after his first offense and continued to transact with him
even though he was on community control. Fourth, Lawson
argues that his sentence is grossly disproportionate in violation of
the Eighth Amendment and his Fifth Amendment substantive due
process rights. After review, we affirm and remand for the limited
purpose of correcting the judgment to reflect that Count 4 of
Lawson’s indictment did not charge him with possession of
ammunition.
1 Shepard v. United States, 544 U.S. 13 (2005).
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I. Background
In April 2019, Lawson sold crack cocaine to an undercover
officer and confidential informant four times. After the second
sale, the undercover officer and confidential informant asked
Lawson if he would sell them guns, which he agreed to do. The
third sale took place in a motel, where Lawson sold them crack
cocaine and a pistol; and the fourth sale took place in the officer’s
car, where Lawson sold the officer and confidential informant
crack cocaine, a short-barreled shotgun, and ammunition.
Lawson pleaded guilty to four counts of distributing cocaine
base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C), and two counts of possessing a firearm as a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
United States sought a sentence enhancement based on Lawson’s
prior drug convictions. So, Lawson faced an enhanced statutory-
maximum term of 30 years’ imprisonment for his crack-cocaine
offenses.
The United States Probation Office recommended
classifying Lawson as a career offender because he had two prior
state court convictions—one for a crime of violence (a 2011 Florida
conviction for aggravated assault of a law enforcement officer with
a firearm) and another for a controlled substance offense (a 2004
Florida conviction for possession, sale, or delivery of cocaine
within 1000 feet of a place of worship). See U.S.S.G. § 4B1.1(a). As
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relevant here, the state court judgment underlying the 2004
conviction identified the statute of conviction as Fla. Stat.
§ 893.13(1)(e)(1), and the crime of conviction as “possession sale or
delivery of cocaine within 1000 feet of a place of worship.”2
Similarly, the waiver-of-rights form for Lawson’s state court guilty
plea described the crime as “cocaine sale w[ithin] 1000 feet of
church.” However, the state court charging document cited the
incorrect statute in the description of the offense, correctly listing
the alleged crime as “POSSESSION, SALE OR DELIVERY OF
COCAINE WITHIN 1000’ OF A PLACE OF WORSHIP
893.13(1)(e)1,” but also stating incorrectly that Lawson did
“feloniously possess, sell or deliver a controlled substance . . .
Cocaine … within 1000 feet of a physical place for worship at which
a church or religious organization regularly conducts religious
services, contrary to Sections 893.135(1)(e)1,” adding a “5” to the
statute number. 3
The probation office recommended a base offense level of
26 for Lawson’s federal offenses, because his sale of guns and drugs
to undercover officers included selling a short-barreled shotgun
and Lawson had two prior felony convictions for a crime of
2 See Fla. Stat. § 893.13(1)(e)(1) (“a person may not sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled
substance . . . within 1,000 feet of a physical place for worship at which a
church . . . regularly conducts religious services”).
3 Fla. Stat. § 893.135(1)(e)(1) prohibits trafficking methaqualone.
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violence and a controlled substance offense. See U.S.S.G.
§ 2K2.1(a)(1)(B). The office recommended an additional four levels
under U.S.S.G. § 2K2.1(b)(6)(B) because these offenses had
involved Lawson’s possession of a firearm in connection with his
distribution of crack cocaine. Thus the total adjusted offense level
was 30, which was less than his offense level under the career-
offender guidelines—31—and therefore did not apply. See
U.S.S.G. § 4B1.1(b)(2).
Based on a total offense level of 31, and a criminal-history
category of VI, Lawson had an advisory guideline range of 188 to
235 months imprisonment.
At his first sentencing hearing, Lawson objected to the PSI’s
application of the sentencing guidelines’ career offender and
firearm enhancements. The district court heard argument on
Lawson’s objections but continued the sentencing hearing to allow
the parties to discuss and brief the issues further. Both parties then
filed additional sentencing memoranda. And upon reconvening
two months later, the court overruled Lawson’s objections,
including a new factor manipulation objection, and sentenced
Lawson to serve a total of 120 months in prison, 68 months below
the low end of the guideline range. This appeal followed.
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II. Discussion
Lawson argues that the district court erred by classifying
him as a career offender, applying a four-level enhancement to his
offense level for possession of a firearm in connection with another
felony, denying his claim of sentence factor manipulation by
government agents, and sentencing him to a term that violates his
Fifth and Eighth Amendment rights.
A. Career Offender Categorization
Lawson argues that he is not a career offender because the
Shephard documents do not clearly explain the elements of his
previous conviction for the possession, sale, or delivery of cocaine
within 1000 feet of a place of worship.
We review a career offender classification de novo. United
States v. Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010). We review
factual findings for clear error. United States v. Wilks, 464 F.3d
1240, 1243 (11th Cir. 2006). We can affirm for any reason with
support in the record. United States v. Chitwood, 676 F.3d 971, 975
(11th Cir. 2012). When the government pursues an enhancement
and the defendant makes a factual objection, the government has
the burden of proving the contested fact by a preponderance of the
evidence. United States v. Washington, 714 F.3d 1358, 1361 (11th
Cir. 2013). An attorney’s arguments are not evidence unless the
parties agree on the attorney’s factual assertion. Id.USCA11 Case: 20-14776 Date Filed: 01/14/2022 Page: 7 of 17
20-14776 Opinion of the Court 7
A defendant is a career offender if he (1) committed his
current crimes of conviction as an adult, (2) his current convictions
are felonies that are either crimes of violence or controlled
substance offenses, and (3) he has at least two prior felony
convictions for crimes of violence or controlled substance offenses.
U.S.S.G. § 4B1.1(a). A controlled substance offense means “an
offense under federal or state law, punishable by imprisonment for
a term exceeding one year” that prohibits manufacture,
distribution, or possession of a controlled substance. U.S.S.G.
§ 4B1.2(b).
Section 893.13(1)(e)(1) of the Florida Statutes prohibits the
sale, manufacture, delivery, or possession with intent to sell,
manufacture, or deliver a controlled substance, including cocaine,
within 1,000 feet of a place of worship or a convenience business.
Fla. Stat. § 893.13(1)(e)(1); Fla. Stat. § 893.03(2)(a)(4) (listing cocaine
and its derivatives as Schedule II drugs). Violations of
§ 893.13(1)(e)(1) are felonies punishable by more than one year in
prison. Fla. Stat. § 893.13(1)(e)(1); see also Fla. Stat. § 775.082(3)
(penalties). Lawson does not argue that § 893.13(1)(e)(1) offenses
are not controlled substance offenses under the sentencing
guidelines. Instead, Lawson argues that it is not clear that he was
convicted of § 893.13(1)(e)(1) because of a typographical error in
the state’s charging document.
We look to the offense of conviction to determine whether
it qualifies as a controlled substance offense for purposes of
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U.S.S.G. § 4B1.2. If the statute in question is divisible—meaning it
“sets out one or more elements of the offense in the alternative”—
this Court uses the modified categorical approach. In Spaho v.
United States Attorney General, 837 F.3d 1172, 1177 (11th Cir.
2016), this Court held that § 893.13 is divisible such that the court
may apply a modified categorical approach by consulting a limited
class of documents to determine which alternative way of
committing the offense formed the basis of the defendant’s prior
conviction.4 The modified categorial approach “look[s] beyond the
statutory elements of the prior conviction by considering Shepard-
approved documents for the limited purpose of ascertaining which
of the alternative elements formed the basis of the defendant’s
conviction.” Id. Shepard documents include charging documents,
judgments, plea agreements, plea colloquy transcripts, or
comparable records of the defendant that adopt factual findings
upon entering a plea. See Shepard v. United States, 544 U.S. 13, 26
(2005); Dudley, 5 F.4th at 1257. The Shepard documents must
speak plainly to the elements of a defendant’s conviction so that we
can determine whether the defendant was convicted of a crime that
consists of the requisite elements to satisfy a federal offense
4To the extent Lawson argues that the district court should have applied the
categorical approach, his argument is unpersuasive in light of Spaho. Because
Fla. Stat. § 893.13 is divisible, the district court properly applied the modified
categorical approach.
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classification. United States v. Gandy, 917 F.3d 1333, 1340 (11th
Cir. 2019).
Lawson argues that the Shephard documents do not “speak
plainly” to the elements of his prior offense because the state court
charging document references Fla. Stat. § 893.135(1)(e)(1) instead
of § 893.13(1)(e)(1). The district court did not commit clear error
when it determined that this single reference to § 893.135 was a
typographical error and that the other state court documents spoke
plainly enough to determine that Lawson was convicted of
“possession, sale, or delivery of cocaine within 1000 [feet] of a place
of worship.” Wilks, 464 F.3d at 1243 (explaining that we review
factual findings for clear error). While there is one place in the
description of the charge where the information states that Lawson
is charged with a violation of § 893.135(1)(e)(1) instead of Fla. Stat.
§ 893.13(1)(e), that paragraph also specifically states that he was
pleading guilty to a count of possession of cocaine “within 1,000
feet of a physical place for worship.” Additionally, the official court
records repeatedly indicated that Lawson was pleading guilty to
“POSSESSION SALE OR DELIVERY OF COCAINE WITHIN
1000 FEET OF A PLACE OF WORSHIP” in violation of
§ 893.13(1)(e)(1). Therefore, the court record “speak[s] plainly in
establishing the elements of” Lawson’s 2004 conviction. Gandy,
917 F.3d at 1340 (quotation omitted). Because Lawson was
convicted of violating a state law prohibiting the possession, sale or
delivery of cocaine, punishable by more than a year of
imprisonment, Fla. Stat. § 775.082(3), the conviction qualified as a
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controlled substance offense under the career offender statutory
guidelines. U.S.S.G. § 4B1.2(b).
And therefore, because Lawson was (1) an adult when he
committed the current offense, (2) his current offense is a
controlled substance offense and (3) Lawson had two prior offenses
for crimes of violence or controlled substances, the district court
properly sentenced him as a career offender under U.S.S.G.
§ 4B1.2(b).
B. Possession of a Gun in Connection with Another
Felony
Lawson argues that the district court erred in applying a
four-level enhancement for possession of a firearm in connection
with another felony offense (distributing cocaine in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C)) because the firearms he sold to
undercover agents did not facilitate the drug transaction.
A court’s determination that a defendant possessed a gun in
connection with another felony is a finding of fact that we review
for clear error. United States v. Bishop, 940 F.3d 1242, 1250 (11th
Cir. 2019). At sentencing, district courts may base factual findings
on undisputed statements in the presentence investigation report.
United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009).
Pursuant to U.S.S.G. § 2K2.1(b)(6)(B), “[i]f the
defendant . . . used or possessed any firearm or ammunition in
connection with another felony offense; or possessed or transferred
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20-14776 Opinion of the Court 11
any firearm or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with
another felony offense” the resulting offense level “increase[s] by 4
levels.” Generally, this enhancement applies when the gun
facilitated or had the potential to facilitate another felony offense
and applies automatically “in the case of a drug trafficking offense
in which a firearm is found in close proximity to drugs.” Id. cmt.
(n.14(A–B)); Bishop, 940 F.3d at 1250.
The Guidelines define a drug trafficking offense, in part, as
“any offense under federal, state, or local law that prohibits the
manufacture, import, export, distribution, or dispensing of, or offer
to sell a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or
dispense.” U.S.S.G. § 2L1.2 cmt. (n.2); United States v. Martinez,
964 F.3d 1329, 1334 n.2 (11th Cir. 2020) (quoting United States v.
Perez, 366 F.3d 1178, 1182 (11th Cir. 2004)) (“Although section
2K2.1 does not define ‘drug trafficking offense,’ we’ve said that
‘[w]here the same language appears in two guidelines, it is
generally presumed that the language bears the same meaning in
both . . . [W]here two sentencing guidelines are worded identically,
absent any distinctions or clarifying words noted in the
Commentary, they should be interpreted and applied in the same
manner.’”).
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Lawson sold cocaine base to the officers. Coca leaves and
its salts, compounds, derivatives, and preparations are controlled
substances under federal law. 21 C.F.R. § 1308.12(b)(4).
Here, the court did not clearly err by finding that the
firearms were in close proximity to Lawson’s drugs and applying
the enhancement on that basis. The presentence investigation
report indicated that Lawson sold drugs and a gun on two
occasions. Thus, his firearms were in close proximity to the drugs
and were therefore connected to his drug offenses. Accordingly,
the § 2K2.1(b)(6)(B) enhancement automatically applies. See
Bishop, 940 F.3d at 1250; § 2K2.1(b)(6)(B) cmt. (n.14(B)).
C. Sentence Factor Manipulation
Lawson argues that the district court erred when it refused
to reduce Lawson’s sentence and held that law enforcement did
not engage in sentence factor manipulation when law enforcement
continued to transact with Lawson as opposed to arresting him
after the first sale.
We review a district court’s refusal to reduce a sentence due
to alleged sentencing factor manipulation for an abuse of
discretion. See United States v. Haile, 685 F.3d 1211, 1223 (11th
Cir. 2012). “While our Circuit does not recognize sentencing
entrapment as a viable defense, we do recognize the outrageous
government conduct defense, and we have considered sentencing
manipulation as a viable defense.” United States v. Ciszkowski, 492
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F.3d 1264, 1270 (11th Cir. 2007). “[S]entencing factor manipulation
occurs when the government’s manipulation of a sting operation,
even if insufficient to support a due process claim, requires that the
manipulation be filtered out of the sentencing calculus.” Id. To
constitute sentencing factor manipulation, the defendant must
demonstrate that the government engaged in extraordinary
misconduct. Id. at 1271. “This Court has never reduced a sentence
on the basis of sentencing factor manipulation.” United States v.
Lange, 862 F.3d 1290 (11th Cir. 2017); United States v. Docampo,
573 F.3d 1091, 1097–98 (11th Cir. 2009). And we have declined
previously to find sentence factor manipulation in similar contexts.
See Lange, 862 F.3d at 1296 (rejecting defendant’s argument that
government committed sentence factor manipulation where it
encouraged commission of five separate criminal transactions
instead of arresting defendant after first sale).
In Govan, we held that a court incorrectly found sentence
factor manipulation when the government bought small quantities
of crack cocaine from the defendant on four separate occasions
rather than arresting the defendant after the first purchase. United
States v. Govan, 293 F.3d 1248, 1251 (11th Cir. 2002). We held that
the government conducting several purchases of small amounts of
drugs was not more manipulative than one purchase of a large
amount, and that the government was allowed to pursue multiple
transactions to make conviction easier. Id. And in Haile, we held
that the district court did not abuse its discretion in finding that the
government did not engage in sentencing factor manipulation,
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when undercover officers involved in a sting operation originally
focused on drugs, initiated conversation about guns with the
defendant and asked him to sell them some. Haile, 685 F.3d at
1214–15, 1223.
Here, the district court did not abuse its discretion by
declining to find sentencing factor manipulation. Lawson failed to
demonstrate that the government engaged in extraordinary
misconduct. See Ciszkowski, 492 F.3d at 1271. Under our
precedent, solely allowing a defendant to continue to engage in
illegal transactions instead of arresting the defendant right away
does not amount to extraordinary misconduct, and neither does
escalating the undercover buy to include guns as well as drugs. 5
See Govan, 293 F.3d at 1251; Haile, 685 F.3d at 1214-15. Here, the
district court did not abuse its discretion in determining that the
conduct of law enforcement could not be classified as extraordinary
misconduct.
5Lawson emphasizes that because he was subject to a form of Florida house
arrest called community control at the time of these transactions, he should
have been arrested right away. However, under our precedent, the police do
not engage in extraordinary conduct by waiting for further illegal activity
before arresting, regardless of whether the unlawful activity was selling drugs
or violating the conditions of community control. Govan, 293 F.3d at 1251.
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D. Constitutional Challenges
Finally, Lawson argues that his 120-month sentence violates
the Eighth Amendment prohibition on cruel and unusual
punishment. 6
We review constitutional challenges to a sentence de novo.7
United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005).
“Outside the context of capital punishment cases, the Eighth
Amendment encompasses, at most, only a narrow proportionality
principle.” United States v. Suarez, 893 F.3d 1330, 1335–36 (11th
Cir. 2018) (quotations omitted). We first examine whether the
defendant has shown that his sentence is grossly disproportionate
to the offense. Id. at 1336; United States v. Johnson, 451 F.3d 1239,
6 Lawson also mentions in passing a violation of his Fifth Amendment
substantive due process rights. To the extent he intended to raise a separate
Fifth Amendment claim independent of his Eighth Amendment claim, he has
abandoned any substantive due process or arbitrariness claim by making them
in passing in a perfunctory manner in his brief without supporting arguments
or authority. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003); United States v. Smith, 967 F.3d 1196, 1204 n.5 (11th Cir. 2020), cert.
denied, 141 S. Ct. 2538, 209 L. Ed. 2d 561 (2021)).
7 Lawson’s counsel mentioned the Eighth Amendment claim in passing during
the December 11 sentencing hearing. We would typically review an Eighth
Amendment claim of cruel and unusual punishment not raised before the
district court for plain error. United States v. Suarez, 893 F.3d 1330, 1335 (11th
Cir. 2018). However, because his claim fails under either standard of review,
we will assume without deciding that Lawson preserved it below and review
it de novo. See United States v. Carthen, 906 F.3d 1315, 1322 (11th Cir. 2018).
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1243 (11th Cir. 2006). “If we find that it is, we then consider
sentences imposed on others convicted of the same crime” to
determine if this sentence was disproportionate in comparison.
Suarez, 893 F.3d at 1336 (quotations omitted). Sentences within
statutory limits generally do not violate the Eighth Amendment
because we give substantial deference to Congress’ authority to
make decisions about punishing crimes. United States v. Bowers,
811 F.3d 412, 432 (11th Cir. 2016). “This Court has never found a
non-capital sentence of an adult to violate the Eighth
Amendment.” Id.Here, Lawson’s sentence was not grossly disproportionate
because it was a noncapital sentence below the statutory limits.
Suarez, 893 F.3d at 1335–36. The district court sentenced Lawson
to only 120 months imprisonment, well below the statutory
maximum of 30 years’ imprisonment. Therefore, Lawson has not
shown that the sentence was grossly disproportionate.
* * *
Although we affirm Lawson’s sentence, there is a clerical
error in his judgment. In Count 4 of the judgment, the court
indicated that Lawson was convicted of possessing a firearm and
ammunition as a felon in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). However, Count 4 in the indictment alleges solely that
Lawson possessed a firearm. Thus, we remand to the district court
with instructions to amend the judgment to correct the clerical
error. See United States v. Massey, 443 F.3d 814, 822 (11th Cir.
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2006) (“We may sua sponte raise the issue of clerical errors in the
judgment and remand with instructions that the district court
correct the errors.”).
AFFIRMED IN PART; REMANDED.