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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12123
Non-Argument Calendar
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D.C. Docket No. 6:03-cr-00109-CEM-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY I. CADE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 20, 2019)
Before WILLIAM PRYOR, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Danny I. Cade appeals his 33-month sentence, imposed upon revocation of
supervised release, under
18 U.S.C. § 3583(e). On appeal, Cade argues the district
court improperly determined that his violation of supervised release for possession
of a firearm by a convicted felon was a Grade A violation because it was not
alleged in the petition for revocation as “new criminal conduct.” We affirm.
I. BACKGROUND
In 2003, Cade pleaded guilty to possessing five grams or more of crack
cocaine in violation of
21 U.S.C. § 841(a)(1). He was sentenced to 151 months
imprisonment followed by five years of supervised release. The terms of his
supervised release required, inter alia, that he “not commit another federal, state, or
local crime,” that he “not illegally possess a controlled substance,” and that he “not
possess a firearm, destructive device, or any other dangerous weapon.” In August
2017, while Cade was on supervised release, the United States Probation Office
petitioned the court to issue a warrant, alleging that Cade had violated the terms of
his supervised release. The petition charged six violations of supervised release
that occurred in June and July of 2017. Violations one and five concerned Cade’s
conduct occurring on June 9, 2017, and the remainder of the violations concerned
Cade’s conduct on July 14 and 15, 2017.
Subsequently, Cade was convicted in Orange County, Florida, in two
separate cases. Based on the events that took place on June 9, 2017, Cade was
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convicted of possession of a firearm by a convicted felon, in violation of
Fla. Stat.
§ 790.23, and possession of cannabis with intent to sell or deliver it, in violation of
Fla. Stat. § 893.13(1)(A)(2). Based on events that took place on July 14, 2017, he
was also convicted of possession of more than 20 grams of cannabis in violation of
Fla. Stat. § 893.13(6)(A).
On May 15, 2018, the district court held Cade’s final supervised release
revocation hearing. Before the hearing, Cade and the government agreed that he
would admit the third and fifth violations of the petition and that the government
would dismiss the rest of the violations. The third violation alleged “[n]ew
criminal conduct, possession of cannabis (>20 Grams), occurring on July 14, 2017,
while on supervision in violation of the conditions of supervision.” Violation five
alleged
Possession of a firearm, ammunition or a destructive device in
violation of the conditions of supervision: On June 9, 2017, in
Orlando, Florida, the defendant was observed by Orlando Police
Department Confidential Reliable Informant TO2421 in person and on
video footage to be in possession of a handgun, which was visibly
secured to his hip during a controlled cannabis purchase.
During the revocation hearing, Cade admitted the third and fifth violations.
The district court found that Cade had “intelligently, freely, and voluntarily waived
his rights in entering this admission and that there is a factual basis for the
admission.” The district court first noted that both violations appeared to be Grade
B violations. The government then explained that it believed the fifth violation
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would be a Grade A violation based on Note 4 to U.S.S.G. § 7B1.1, which
provides for a Grade A violation for possession of certain enumerated firearms.
The government also introduced the records of Cade’s state court convictions.
Cade stated that he did not dispute that “had [Violation 5] been charged [in the
petition] as new criminal conduct that it would be a Grade A violation,” but that
the absence of “new criminal conduct” made Violation 5 a grade B violation. The
district court decided that it would not accept Cade’s admissions and instead rely
on the government’s evidence of the violations. Nonetheless, the court found that
Cade violated his supervised release. The district court determined that Cade’s
conduct constituted a Grade A violation, which, combined with a criminal history
category of VI, resulted in a guideline range of 33 to 36 months’ imprisonment.
The district court sentenced Cade to a term of 33 months’ imprisonment with no
supervision to follow. Cade timely appealed.
II. DISCUSSION
This Court reviews the reasonableness of a district court’s sentence,
including a sentence imposed upon revocation of supervised release, for abuse of
discretion using a two-step process. United States v. Trailer,
827 F.3d 933, 935–36
(11th Cir. 2016). This Court first determines whether the district court committed
a significant procedural error, like miscalculating the advisory guideline range.
Id.
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at 936. Then this Court asks whether the sentence is substantively reasonable in
light of the totality of the circumstances.
Id.
A district court may “revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised release” if the
court “finds by a preponderance of the evidence that the defendant violated a
condition of supervised release.”
18 U.S.C. § 3583(e)(3). To determine the
defendant’s sentence following revocation of supervised release, the district court
must consider the factors in
18 U.S.C. § 3553(a) and calculate an advisory
sentencing range under Chapter 7 of the Sentencing Guidelines.
18 U.S.C.
§ 3583(c); U.S.S.G. § 7B1.4.
The advisory sentencing range for violation of supervised release is
determined based on the grade of the violation as set out in a policy statement to
the Sentencing Guidelines. U.S.S.G. § 7B1.1. A Grade A violation of supervised
release is any conduct constituting either: “(A) a federal, state, or local offense
punishable by a term of imprisonment exceeding one year that (i) is a crime of
violence, (ii) is a controlled substance offense, or (iii) involves the “possession of a
firearm or destructive device of a type described in
26 U.S.C. § 5845(a)”; or
“(B) any other federal, state, or local offense punishable by a term of imprisonment
exceeding twenty years.” U.S.S.G. § 7B1.1(a)(1). A Grade B violation is “any
other federal, state, or local offense punishable by a term of imprisonment
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exceeding one year.” U.S.S.G. § 7B1.1(a)(2). A Grade C violation is “a federal,
state, or local offense punishable by a term of imprisonment of one year or less, or
. . . a violation of any other condition of supervision.” U.S.S.G. § 7B1.1(a)(3). If
there is more than one violation of the conditions of supervised release, the grade
of the defendant’s violation is determined by the violation with the highest grade.
U.S.S.G. § 7B1.1(b). The commentary to U.S.S.G. § 7B1.1 provides that the grade
of the violation “does not depend upon the conduct that is the subject of criminal
charges or of which the defendant is convicted in a criminal proceeding. Rather,
the grade of the violation is to be based on the defendant’s actual conduct.”
U.S.S.G. § 7B1.1, comment. (n.1).1
Cade argues that the district court committed procedural error in calculating
the guidelines range because Violation 5 of the petition for revocation alleged only
possession of a firearm and not “new criminal conduct.” He argues that Violation 5
thus alleges a violation of the condition of supervised release prohibiting him from
possessing a firearm, rather than the condition prohibiting him from committing
any federal or state crime. While the first four violations of the petition did allege
“new criminal conduct,” the absence of that language in Violation 5 is not
determinative. The Guidelines commentary states that a violation of a condition of
1
“Commentary which functions to ‘interpret [a] guideline or explain how it is to be
applied,’ U.S.S.G. § 1B1.7, controls.” Stinson v. United States,
508 U.S. 36, 42 (1993).
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supervised release “may be charged whether or not the defendant has been the
subject of a separate federal, state, or local prosecution for such conduct.”
U.S.S.G. § 7B1.1, comment. (n.1). “[T]he grade of the violation is to be based on
the defendant’s actual conduct.” Id. Violation 5 alleges the Cade was observed in
person and on video footage to be in possession of a handgun during a controlled
cannabis purchase. The underlying facts of Cade’s alleged conduct—which
unequivocally constitutes “new criminal conduct”—controls regardless of the
violation’s characterization as “new criminal conduct,” vel non.
Cade argues for the first time in his reply brief that the omission of the “new
criminal conduct” language is important because without it the petition violated his
due process rights by failing to alert him to the alleged violation. But as we have
repeatedly held, “[a]rguments raised for the first time in a reply brief are not
properly before a reviewing court.’” United States v. Coy,
19 F.3d 629, 632 n.7
(11th Cir 1994). Nevertheless, even if it had been raised in his opening brief,
Cade’s argument would still fail. To be sure, due process requires that a defendant
be given notice of the claimed violations of his supervised release. See Morrissey
v. Brewer,
408 U.S. 471, 489 (1972). But this Court’s predecessor held that a
district court did not abuse its discretion in finding no due process violation where
a probation revocation petition stated only that the reason for revocation was
“[a]rrest and possession of marihuana on November 24, 1974.” United States v.
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Evers,
534 F.2d 1186, 1187–88 (5th Cir. 1976). Here, the petition plainly stated
that the reason for the revocation was that Cade had been seen by an Orlando
police confidential informant in person and on video footage to be in possession of
a handgun secured to his hip during a controlled cannabis purchase. This
description, like the description in Evers, was sufficient to put Cade on notice of
the violation that gave rise to the revocation.
Cade further argues that even if Violation 5 stated that it was alleging “new
criminal conduct,” his conduct would not constitute a Grade A violation. The first
problem for Cade here is that he conceded before the district court that his conduct
would have constituted a Grade A violation had it been labeled “new criminal
conduct.” See United States v. Phillips,
834 F.3d 1176, 1183 (11th Cir. 2016)
(explaining that when a litigant intentionally relinquishes a right before the district
court, there can be no error). But even if Cade had preserved the argument, we
would still reject it. Grade A violations include, among other things, “federal,
state, or local offense[s] punishable by a term of imprisonment exceeding twenty
years.” U.S.S.G. § 7B1.1(a)(1)(B).2 In Florida state court, Cade was convicted of
being a felon in possession of a firearm, which is a second-degree felony. Fla. Stat.
2
The government relies solely on U.S.S.G. § 7B1.1(a)(1)(B) for affirmance, and not on
U.S.S.G. § 7B1.1(a)(1)(A), which includes “a federal, state, or local offense punishable by a term
of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance
offense, or (iii) involves possession of a firearm or destructive device of a type described in
26
U.S.C. § 5845(a).”
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§ 790.23(1)(a). Under Florida law, a second-degree felony is ordinarily punishable
by a term not to exceed 15 years.
Fla. Stat. § 775.082(3)(d). Cade argues that his
conduct therefore does not constitute a Grade A violation based on commission of
a Florida crime because it was not punishable by more than 20 years. Florida’s
habitual offender statute, however, raises the maximum term of imprisonment for a
second-degree felony conviction to 30 years if the defendant is a “habitual felony
offender.”
Fla. Stat. § 775.084(4)(a)(2). The statute provides a number of reasons
a defendant may be classified as a “[h]abitual felony offender.” One of those
reasons is that “[t]he felony for which [he is being] sentenced was committed . . .
[w]hile [he] was serving a prison sentence or other sentence, or court-ordered or
lawfully imposed supervision that is imposed as a result of a prior conviction for a
felony or other qualified offense.”
Id. § 775.084(1)(a)(2)(a). Because Cade’s
conduct occurred while he was on supervised release, the habitual felony offender
statute would apply, and his sentence could have exceeded 20 years under Florida
law.
Applying a state’s habitual offender statute to determine the grade of a
violation of supervised release is consistent with this Court’s precedent. United
States v. Boisjolie,
74 F.3d 1115, 1116–17 (11th Cir. 1996). In Boisjolie, this
Court held that the district court correctly used the maximum sentence available
under Alabama’s Habitual Felony Offender Act in determining whether conduct
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constituted a Grade A violation because it was a crime punishable by more than 20
years.
Id. This Court explained that the defendant’s criminal conduct was not
merely committing the offense but committing it as a habitual offender, which is
consistent with the Guidelines’ objective of tailoring punishment to fit the
individual criminal and crime committed.
Id. at 1116 (citing U.S.S.G. Ch. 1, Pt.A,
intro comment., at 2). Boisjolie is applicable to Cade’s case even though, unlike
Boisjolie, he was not charged as a habitual offender in Florida because the
Guidelines commentary provides that the grade of the violation is to be determined
based on the defendant’s actual conduct rather than the conduct that is subject to
criminal charges or conviction. U.S.S.G. § 7B1.1, commentary, at n.1. Therefore,
even if Cade had not expressly waived the argument that his conduct would not
qualify as a Grade A violation had it been labeled as “new criminal conduct,” that
argument fails because he committed a state crime punishable by more than 20
years.
The government argues that Cade’s conduct would also qualify as a Grade A
violation based on
18 U.S.C. § 924(c). Section 924(c)(1)(A) provides that:
any person who, during and in relation to any crime of violence or drug
trafficking crime . . . 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—(i) be
sentence to a term of imprisonment of not less than 5 years.
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Violation 5 of the petition reported that during a controlled cannabis purchase,
Cade was seen by an Orlando police confidential informant wearing a handgun on
his hip. This conduct establishes a violation of section 924(c), which is a crime
punishable by imprisonment exceeding 20 years. See United States v. Brame,
997
F.2d 1426, 1428 (11th Cir. 1993) (explaining that when a statute provides a
mandatory minimum sentence but no maximum, the maximum sentence is life
imprisonment).
Moreover, Cade’s violation of
18 U.S.C. § 924(c) also could have been
charged under the Armed Career Criminal Act,
18 U.S.C. § 924(e), because of his
prior controlled substance convictions. Section 924(e) imposes an enhanced
sentence for possession of a firearm by a person convicted of “a crime punishable
by imprisonment for a term exceeding one year,”
18 U.S.C. § 922(g)(1), where the
defendant has “three previous convictions . . . for a violent felony or a serious drug
offense, or both.”
18 U.S.C. § 924(e)(1). The minimum sentence under section
924(e) is 15 years’ imprisonment, and the maximum sentence is life imprisonment.
See Brame,
997 F.2d at 1428 (holding that the statutory maximum under section
924(e) is life imprisonment).
Because Cade bears the burden of showing that his sentence is unreasonable
and he argues only that the district court miscalculated the guidelines range, our
review is limited to determining whether the district court committed procedural
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error. See Trailer, 827 F.3d at 936. Because we conclude that the district court did
not commit procedural error in determining that Cade’s conduct constituted a
Grade A violation since it was punishable by more than 20 years, we affirm.
The judgment of the district court is
AFFIRMED.
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