United States v. Christopher Jermaine Craig ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12934
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00296-KOB-TMP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER JERMAINE CRAIG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(May 31, 2013)
Before CARNES, BARKETT, and FAY, Circuit Judges.
PER CURIAM:
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Christopher Craig appeals his 70-month sentence, imposed after a jury
conviction for being a felon in possession of a firearm. On appeal, Craig argues
that the district court erred in finding that his prior Alabama conviction for
unlawful possession of marijuana in the first degree qualified as a “controlled
substance offense” within the meaning of U.S.S.G. § 4B1.2(b), which increased his
base offense level. For the reasons set forth below, we affirm Craig’s sentence.
I.
In 2011, a federal grand jury returned an indictment, charging Craig with
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and,
after a jury trial, Craig was convicted of the charged offense.
The presentence investigation report (“PSI”) assigned Craig a base offense
level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4) because he had a prior felony
conviction for a “controlled substance offense,” as defined by U.S.S.G. § 4B1.2(b).
Specifically, Craig had a prior Alabama conviction for possession of marijuana in
the first degree. According to the PSI, the Alabama indictment charged Craig with
unlawful possession of marijuana “for other than personal use in violation of Ala.
Code § 13A-12-213.” Based on a total offense level of 20 and a criminal history
category of V, Craig’s guideline range was 63 to 78 months’ imprisonment.
Craig filed objections to the PSI, arguing, among other things, that the PSI
incorrectly characterized his prior Alabama conviction as a “controlled substance
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offense” under the Guidelines. Moreover, the Alabama indictment did not state
that he possessed marijuana with intent to “manufacture, import, export, distribute,
or dispense,” as required under § 4B1.2. Finally, Craig asserted that this case is
distinguishable from prior cases in which the probation officer imposed the same
offense level increase by relying on unpublished cases from this Court addressing
the definition of a “serious drug offense[]” under the Armed Career Criminal Act
(“ACCA”). In support of his objections, Craig attached the “case action summary”
and the indictment from his Alabama criminal proceeding. The indictment
charged that Craig “did unlawfully possess marihuana for other than personal use,
in violation of Section 13A-12-213 of the Alabama Criminal Code.”
At the sentencing hearing, the district court addressed Craig’s objection to
the guideline calcluations, stating,
I think you made a good argument, but I think the argument is
basically addressed in [United States v. Goodlow, 389 F. App’x 961 (11th Cir.
2010)]. And although that is an unpublished decision, it does rely on
published decisions by the Eleventh Circuit in reaching its conclusion
that possession of marijuana in the first degree for other than personal
use under Alabama law is a controlled substance offense.
Thus, the district court overruled Craig’s objection to the PSI’s characterization of
his prior marijuana offense as a controlled substance offense. Ultimately, the court
adopted the guideline calculations and imposed a 70-month sentence.
II.
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We review de novo the district court’s legal interpretations of the Sentencing
Guidelines. United States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011). We
may disregard the holding of a prior panel’s opinion only if the Supreme Court, or
this Court sitting en banc, overrules that opinion. United States v. Kaley, 579 F.3d
1246, 1255 (11th Cir. 2009).
Under the Sentencing Guidelines, a defendant convicted of being a felon in
possession of a firearm under § 922(g)(1) ordinarily faces a base offense level of
14 as a “prohibited person.” U.S.S.G. § 2K2.1(a)(6) & comment. (n.3). The
offense level increases to 20 if the defendant has at least one prior conviction for a
“controlled substance offense.” Id. § 2K2.1(a)(4)(A). Pursuant to § 4B1.2(b), the
term “controlled substance offense” means a felony offense under federal or state
law that “prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance,” or possession with intent to do the same. Id. § 4B1.2(b).
Under the ACCA, the term “serious drug offense” means “an offense under [s]tate
law, involving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii).
Under § 13A-12-213(a)(1), a person commits the crime of unlawful possession of
marijuana in the first degree if he possesses marijuana “for other than personal
use.”
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In United States v. Robinson, 583 F.3d 1292 (11th Cir. 2009), a case
involving the review of § 13A-12-213(a) under the ACCA, we held that a
defendant’s prior conviction under the statute qualified as a “serious drug offense”
within the meaning of the ACCA. 583 F.3d at 1293-96. We explained that a
“serious drug offense” is defined as a state law offense, “involving manufacturing,
distributing, or possessing with intent to manufacture or distribute, a controlled
substance.” Id. at 1294. Upon reviewing the statute, we concluded that “§ 13A-
12-213(a)(1) covers distribution offenses.” Id. at 1295. Noting that the Alabama
statute “does not define the phrase ‘for other than personal use,’” we concluded
that the statute “necessarily punishes possession for someone else’s use.” Id. at
1296. “In other words, [§] 13A-12-213 punishes the possession of marijuana with
the intent to distribute to another.” Id.
Research does not reveal, and Craig does not identify, a published opinion
from this Court, addressing whether a conviction under § 13A-12-213 qualifies as
a “controlled substance offense” within the meaning of § 4B1.2(b). However, in
Goodlow, the unpublished decision that the district court applied to resolve Craig’s
objections, we relied on Robinson in concluding that the “for other than personal
use” prong of § 13A-12-213 punishes marijuana with intent to distribute and, as
such, it qualified as a controlled substance offense under § 4B1.2(b). See
Goodlow, 389 F. App’x at 968.
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Because Robinson is binding precedent and establishes that a violation of
§ 13A-12-213 necessarily punishes possession of marijuana with the intent to
distribute, Craig cannot establish that the district court erred in characterizing his
prior Alabama conviction as a controlled substance offense under § 4B1.2(b). See
Robinson, 583 F.3d at 1295-96; Kaley, 579 F.3d at 1255. Craig’s Alabama
indictment charged him under the prong of § 13A-12-213 that criminalizes
possession of marijuana “for other than personal use.” Although in the context of
the ACCA, we held, in Robinson, that a conviction for possession of marijuana
“for other than personal use” under § 13A-12-213 covers distribution offenses. See
Robinson, 583 F.3d at 1295. Thus, Craig’s argument on appeal—that his Alabama
offense was not a controlled substance offense because the indictment did not
specifically allege that he possessed marijuana with intent to manufacture, import,
distribute, or dispense marijuana—is unpersuasive. See id. Under the Guidelines,
the term “controlled substance offense” includes state felony offenses for
possession with intent to distribute. U.S.S.G. § 4B1.2(b). As such, applying
Robinson to the instant circumstances, the district court did not err in determining
that Craig had at least one prior conviction for a “controlled substance offense”
within the meaning of § 4B1.2(b).
Finally, Craig’s reliance on our decision in United States v. Shannon, 631
F.3d 1187 (11th Cir. 2011), is misplaced. In Shannon, we reviewed a Florida
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statute, which criminalizes, among other things, the act of purchasing 28 grams or
more of cocaine. Shannon, 631 F.3d at 1188-89 (emphasis added). Because the
district court was unable to determine the statutorily-prohibited act for which the
defendant was convicted, we assumed that his conviction involved only the
purchase of cocaine. Id. at 1189. In reviewing whether the prior Florida
conviction qualified as a controlled substance offense, we found it significant that
the definition of a controlled substance offense in § 4B1.2(b) “does not include the
act of purchase.” Id. at 1188. Applying the plain language of § 4B1.2(b), we held
that the defendant’s prior conviction did not qualify as a controlled substance
offense because the offense involved “no more than the purchase with intent to
distribute,” which is not an act that is covered by § 4B1.2(b). See id. at 1189-90.
Here, Craig’s offense did not involve the act of purchasing drugs and, as such, our
decision in Shannon is not directly applicable. Moreover, as discussed above, we
have specifically addressed the Alabama statute at issue in the instant case and
concluded that it covers distribution offenses, which is included in § 4B1.2(b)’s
definition of a controlled substance offense.
For the foregoing reasons, we affirm Craig’s sentence.
AFFIRMED.
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