USCA11 Case: 21-10240 Date Filed: 12/02/2021 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10240
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERRY F. CARTER,
a.k.a. Sleepy,
a.k.a. Sleep,
Defendant-Appellant.
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2 Opinion of the Court 21-10240
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cr-00064-RH-MJF-1
____________________
Before JILL PRYOR, BRANCH, and EDMONDSON, Circuit Judges.
PER CURIAM:
Gerry Carter appeals the 360-month sentence imposed after
Carter pleaded guilty to a drug-trafficking offense and to possession
of a firearm in furtherance of a drug-trafficking offense. On appeal,
Carter challenges the district court’s determination that his 2003
Georgia drug conviction qualified as a “serious drug felony” for
purposes of triggering an enhanced mandatory minimum sentence
under 21 U.S.C. § 841(b)(1)(A). No reversible error has been
shown; we affirm.
A federal grand jury returned an indictment charging Carter
with (1) conspiracy to distribute and to possess with intent to dis-
tribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii), 846, and 851 (Count 1); and (2) possession of a fire-
arm in furtherance of a drug-trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i) (Count 2). The government later filed no-
tice of its intent to seek an enhanced penalty under 21 U.S.C. § 841
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21-10240 Opinion of the Court 3
based on Carter’s 2003 and 2012 Georgia convictions for possession
with intent to distribute marijuana: convictions the government
said constituted serious drug felonies. Carter pleaded guilty pursu-
ant to a written plea agreement.
The Presentence Investigation Report (“PSI”) calculated an
advisory guideline range of 292 to 365 months’ imprisonment. The
PSI then determined that Carter was subject to a mandatory mini-
mum sentence of 300 months on Count 1 and was also subject to a
consecutive mandatory minimum sentence of 60 months on Count
2. Carter’s guidelines range was thus adjusted to between 360 and
425 months’ imprisonment. The district court imposed a total
mandatory minimum sentence of 360 months’ imprisonment.
We review for clear error the district court’s factual findings
and review de novo the application of the law to the facts. See
United States v. Clay,
483 F.3d 739, 743 (11th Cir. 2007).
Under 21 U.S.C. § 841, a defendant is subject to a mandatory
minimum sentence of 25 years’ imprisonment if he commits a
drug-trafficking offense in violation of section 841(a) after having
two or more prior convictions for a “serious drug felony.” 21
U.S.C. § 841(b)(1)(A). A “serious drug felony” is defined, in perti-
nent part, as a felony drug conviction for which “the offender
served a term of imprisonment of more than 12 months.” 21
U.S.C. § 802(57)(A).
On appeal, Carter challenges the district court’s calculation
of the number of days Carter served in prison for his 2003 Georgia
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4 Opinion of the Court 21-10240
drug conviction. Carter says he served fewer than 12 months in
prison for that offense. As a result, Carter contends his 2003 Geor-
gia drug conviction is no “serious drug felony” for purposes of trig-
gering the 25-year mandatory minimum sentence. 1
In preparation for sentencing, the government introduced
Georgia court documents related to Carter’s 2003 drug conviction
and sentencing. These state records show that Carter was arrested
on 1 February 2003 for possession with intent to distribute mariju-
ana in violation of Georgia law. Carter pled guilty to the charged
offense. On 21 February 2003, the state court -- pursuant to Geor-
gia’s First Offender Act -- sentenced Carter to two years’ confine-
ment to be served on probation.2 The state court’s written judg-
ment advised that if Carter violated the terms of his probation, the
state court could revoke his probation and sentence Carter “up to
the maximum sentence authorized by law.” The state court pro-
vided further that “[t]he defendant shall receive credit for time
served on probation to be applied toward the maximum sentence.”
1 That Carter’s 2012 Georgia conviction for possession with intent to distrib-
ute marijuana constitutes a “serious drug felony” is undisputed.
2 Under Georgia’s First Offender Act, a court may -- before an adjudication of
guilt -- sentence eligible defendants to a term of probation and defer further
proceedings. O.C.G.A. § 42-8-60(a). If the defendant completes successfully
his probation, he is exonerated of guilt and discharged. Id. § 42-8-60(e). If,
however, the defendant violates the terms of his probation, “[t]he court may
enter an adjudication of guilt and proceed to sentence the defendant as other-
wise provided by law.” Id. § 42-8-60(d).
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21-10240 Opinion of the Court 5
On 26 June 2003, Carter was arrested for violating the terms
of his probation. On 29 July 2003, the state court ordered Carter to
complete a Diversion Center program and ordered Carter to re-
main in custody until he could be placed in the Diversion Center.
The state court thus modified Carter’s sentence to require Carter
“to serve 120 days with the balance of that time suspended upon
entering the Diversion Center.” The state court further ordered
that, upon Carter’s release from the Diversion Center, Carter
would remain subject to the original 21 February 2003 order of pro-
bation. Carter entered the Diversion Center on 27 August 2003.
On 24 December 2003, Carter was arrested for violating his
probation a second time. On 3 February 2004, the state court re-
voked Carter’s probation and adjudicated Carter guilty of his mari-
juana drug offense. The state court sentenced Carter to two years’
imprisonment to be served “over and above time served on first
offender probation.”
In calculating the time Carter served in prison for his 2003
drug conviction, the district court considered three periods of in-
carceration: (1) 1 February to 21 February 2003 (21 days); (2) 26
June to 27 August 2003 (63 days); and (3) 24 December 2003 to 12
November 2004 (325 days). The district court concluded that each
of these periods constituted time served on Carter’s 2003 drug con-
viction: a total of 409 days’ imprisonment. That the district court
counted properly the 325 days between 24 December 2003 and 12
November 2004 as time served is undisputed. Carter challenges
only the district court’s counting of the first and second periods of
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6 Opinion of the Court 21-10240
incarceration toward the total time served in prison for his 2003
drug offense.
Under Georgia law, a defendant “shall be given full credit for
each day spent in confinement . . . including: (1) Pretrial confine-
ment, for any reason, since the date of arrest for the offense which
is the subject of the sentence; and (2) Posttrial confinement await-
ing . . . transfer to the Department of Corrections or other court
ordered institution or facility.” O.C.G.A. § 17-10-11(a). The Geor-
gia Supreme Court has said that the “clear policy” behind this stat-
ute is that all time a defendant spends incarcerated by the state
“should count toward the time which a prisoner must serve.” See
Spann v. Whitworth,
413 S.E.2d 713, 715 (Ga. 1992).
Georgia law also provides that, upon revocation of a term of
probation, the time spent on probation constitutes “time served”
that must be deducted from a defendant’s sentence. See O.C.G.A.
§ 42-8-38(c). In the context of the revocation of a term of first-of-
fender probation, the Georgia Supreme Court has said that “time
spent on probation prior to an adjudication of guilt must be cred-
ited to any new sentence received.” See Roland v. Meadows,
548
S.E.2d 289, 290 (Ga. 2001).
Against this background, it seems to us that the district court
determined correctly that -- when imposing a sentence upon revo-
cation of Carter’s first-offender probation -- the state court was re-
quired by Georgia law to credit Carter for these days: (1) the 21
days Carter spent in pretrial confinement (between 1 February to
23 February 2003) and (2) the 63 days Carter spent in custody while
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21-10240 Opinion of the Court 7
on first-offender probation and while awaiting transfer to the Di-
version Center (26 June to 27 August 2003). See O.C.G.A. § 17-10-
11(a); Roland,
548 S.E.2d at 290. The district court’s determination
is also consistent with the state court’s notice to Carter that -- in the
event his first-offender probation was revoked -- he would “receive
credit for the time served on probation to be applied toward” his
revocation sentence.
Carter contends, however, that the state court never cred-
ited him for the time he spent in prison before 23 December 2003.
In support of this assertion, Carter relies upon the language of the
state court’s sentencing order: an order that imposed a two-year
sentence “over and above time served on first offender probation.”
According to Carter, because he received no credit toward his sen-
tence for his earlier periods of incarceration, those periods of incar-
ceration do not count toward the 12-month threshold required for
a “serious drug felony.”
The district court rejected this argument. The district court
construed the state court’s “over and above” language to mean that
the state court imposed a sentence of two years in addition to the
time Carter already served on probation. The district court thus
concluded that the state court did credit Carter properly for all the
time he spent in custody.
The district court’s reading of the state court’s “over and
above” language is supported by the Georgia Supreme Court’s de-
cision in Roland. There, the defendant challenged the sentence im-
posed upon the revocation of his first-offender probation on
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8 Opinion of the Court 21-10240
grounds that the sentencing court failed to credit him for time
served on probation. See Roland,
548 S.E.2d at 290. The chal-
lenged sentencing order imposed a sentence of “ten years, five
years over and above any time previously served.”
Id. at 291 (em-
phasis in original). The Georgia Supreme Court interpreted the
sentencing court’s “over and above” language as imposing a total
sentence of thirteen years: “five to be served in prison beyond the
three already served on probation, to be followed by an additional
five years on probation.”
Id. Under this construction, the Georgia
Supreme Court concluded that the defendant had been credited
properly for the time he already served on probation.
Id.
Given the record in this case, we cannot conclude that the
district court clearly erred in finding that the state court credited
Carter for the time he spent in prison before 23 December 2003. 3
We accept the district court’s determination that Carter served a
total of 409 days in prison for his 2003 Georgia drug offense.
Carter’s 2003 Georgia drug offense thus qualified as a “serious drug
felony” within the meaning of section 841(b)(1)(A). Because Carter
3 By asserting that the state court failed to credit him for time served prior to
23 December 2003, it seems to us that Carter contends that the state court
imposed a sentence that failed to comply with Georgia law. Nothing evi-
dences that Carter has challenged the validity of his 2003 revocation sentence
in the Georgia courts. We will not construe the state court’s “over and above”
language in a way that appears to be inconsistent with Georgia law. Cf. Custis
v. United States,
511 U.S. 485, 496-97 (1994) (providing that a defendant in a
federal sentencing proceeding may not attack collaterally a prior state court
conviction that serves as a predicate offense for a sentencing enhancement).
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21-10240 Opinion of the Court 9
had two prior convictions for a serious drug felony, we affirm the
district court’s determination that Carter was subject to a statutory
mandatory minimum sentence of 25 years’ imprisonment on
Count 1.
AFFIRMED.
