United States v. Jeremy James ( 2017 )

Case: 17-10284 Date Filed: 10/17/2017 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10284
Non-Argument Calendar
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D.C. Docket No. 4:16-cr-00085-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEREMY JAMES,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(October 17, 2017)
Before JORDAN, ROSENBAUM and ANDERSON, Circuit Judges.
PER CURIAM:
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Jeremy James appeals his 77-month sentence, imposed after pleading guilty
to one count of possession of ammunition by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). On appeal, James objects to the district court’s application of a
base offense level enhancement pursuant to U.S.S.G. § 2K2.1, based in part on a
2003 state felony conviction for possession of a non-controlled substance with
intent to distribute. James argues that the government did not prove by a
preponderance of the evidence that his 2003 non-controlled substance conviction
involved a “counterfeit substance” within the meaning of U.S.S.G. § 4B1.2(b) or
that he had the requisite mental culpability to commit an offense involving a
counterfeit substance. The government argues that James did not raise these
objections below, they are subject to plain error review, and the district court did
not plainly err.
I.
For arguments properly preserved in the district court, we review a district
court’s factual findings for clear error and application of the Sentencing Guidelines
to those facts de novo. United States v. Barner, 572 F.3d 1239, 1247 (11th Cir.
2009). “When the appealing party does not clearly state the grounds for an
objection in the district court, we are limited to reviewing for plain error.” United
States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). To preserve an issue for
appeal, a defendant must raise the issue in a clear enough manner “to inform the
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district court of the legal basis for the objection.” Id. at 819. The “objection must
be sufficiently detailed to allow the trial court an opportunity to correct any
arguable errors before an appeal is taken.” United States v. Hoffer, 129 F.3d 1196,
1202 (11th Cir. 1997). Finally, “the defendant’s failure to object to conclusory
statements in the [Presentence Investigation Report (“PSI”)] renders those
statements undisputed and permits the sentencing court to rely upon them without
error even if there is an absence of supporting evidence.” United States v. Beckles,
565 F.3d 832, 843–44 (11th Cir. 2009).
II.
The district court sentenced James under U.S.S.G. § 2K2.1(a)(2). Section
2K2.1(a)(2) provides a base offense level of 24 “if the defendant committed any
part of the instant offense subsequent to sustaining at least two felony convictions
of either a crime of violence or a controlled substance offense.” The term
“controlled substance offense” includes an offense “that prohibits the manufacture,
import, export, distribution, or dispensing of 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.” See
U.S.S.G. § 4B1.2(b).
It is undisputed that James sustained one controlled substance conviction
prior to the present offense. Regarding a second conviction for a “controlled
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substance offense,” James pled guilty to possession with intent to distribute a non-
controlled substance under O.C.G.A. § 16-13-30.1(a)(1) in 2003. 1 According to
the PSI in this case, James’s 2003 non-controlled substance conviction resulted
from James attempting to sell a substance that he represented to be “crack”
cocaine. Officers later determined that the substance “was counterfeit.”
In the district court, James did not object to any of the factual statements in
the PSI, including the report’s characterization of his non-controlled substance
conviction as involving counterfeit “crack” cocaine. Rather, James argued that his
2003 non-controlled substance conviction is not a “controlled substance offense”
as defined in § 4B1.2(b) because it involved a non-controlled substance and was
more than thirteen years old at the time that he was sentenced. The district court
concluded that James’s 2003 non-controlled substance conviction constitutes a
1
O.C.G.A. § 16-13-30.1(a)(1) provides:
It is unlawful for any person knowingly to manufacture, deliver,
distribute, dispense, possess with the intent to distribute, or sell a
noncontrolled substance upon either:
(A) The express or implied representation that the substance is a
narcotic or nonnarcotic controlled substance;
(B) The express or implied representation that the substance is of
such nature or appearance that the recipient of said delivery will be
able to distribute said substance as a controlled substance; or
(C) The express or implied representation that the substance has
essentially the same pharmacological action or effect as a
controlled substance.
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“controlled substance offense” under § 2K2.1(a)(2) and sentenced James based on
a base offense level of 24.
III.
James now claims that the prosecution presented insufficient evidence that
the non-controlled substance that led to his 2003 conviction was a “counterfeit
substance” for purposes of U.S.S.G. § 4B1.2(b). James did not make this
sufficiency of the evidence argument in the district court. Nor did he object to the
PSI’s characterization of his conviction as involving counterfeit “crack” cocaine.
Thus, the district court did not err, let alone plainly err, by accepting that fact as
true, even in the absence of supporting evidence. See Beckles, 565 F.3d at 843–44.
To the extent that James also argues that a non-controlled substance
conviction cannot qualify as a “controlled substance offense,” this argument fails.
Under § 4B1.2(b), the term “controlled substance offense” includes offenses
involving a “counterfeit substance.” See United States v. Frazier, 89 F.3d 1501,
1505 (11th Cir. 1996) (concluding that a conviction under a Florida statute that
prohibited offering to sell a controlled substance and selling a non-controlled
substance in lieu of the controlled substance constitutes a “controlled substance
offense”). Thus, James’s failure to object to the PSI’s characterization of his non-
controlled substance offense as involving counterfeit “crack” cocaine forecloses
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any argument that his non-controlled substance conviction is not a “controlled
substance offense” under U.S.S.G. § 4B1.2(b).
Finally, section 4B1.2(b) does not require an element of mens rea regarding
the illicit nature of the controlled substance. United States v. Smith, 775 F.3d
1262, 1267 (11th Cir. 2014). Thus, James’s argument regarding proof of the
mental culpability to commit a controlled substance offense is irrelevant.
Accordingly, we affirm the sentence imposed by the district court.
AFFIRMED.
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