United States v. Shawn Dellena Samuel , 580 F. App'x 836 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15926
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20498-DMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN DELLENA SAMUEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 26, 2014)
Before WILSON, ROSENBAUM, and FAY, Circuit Judges.
PER CURIAM:
Shawn Dellena Samuel appeals his conviction and 15-year sentence for
possession of a firearm and ammunition by a convicted felon. We affirm.
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I. BACKGROUND
On June 26, 2013, Sergeant (“Sgt.”) Emanuel Prospere and Detective
Roderick Passmore of the Miami Police Department were investigating the
homicide of Duane Luscant, who had been killed on June 11. Luscant had been
shot several times, and the murder weapon had not been recovered. Law
enforcement had identified several suspects, including Samuel, because officers
had obtained information that Luscant had received threatening text messages from
Samuel concerning a narcotics transaction. The text messages stated Samuel “was
going to do something to the victim.” ROA at 177. Unidentified witnesses also
had identified Samuel as having been involved in the Luscant homicide.
Sgt. Prospere had known Samuel for approximately nine years, and he and
Samuel “have a history.” ROA at 177. As a result of the investigation,
Sgt. Prospere wanted to question Samuel about the homicide. At approximately
8:00 p.m. on June 26, 2013, Sgt. Prospere and Detective Passmore saw Samuel
riding a bicycle. When he first saw Samuel on June 26, Sgt. Prospere was driving
an unmarked car, traveling eastbound. Samuel was approximately 20 feet away,
traveling westbound, and did not change direction.
As Samuel approached the officers, Detective Passmore told Sgt. Prospere:
“[B]e careful, I noticed a bulge.” ROA at 179. Sgt. Prospere exited his car and
told Samuel he wanted to speak with him. Neither officer drew his weapon when
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exiting the car. Samuel dismounted his bicycle, and Sgt. Prospere “grabbed him
by the rear of the shirt,” to ensure the officers’ safety and to prevent Samuel from
running. ROA at 179. When Sgt. Prospere ordered Samuel to place his hands on
the squad car, Samuel told Sgt. Prospere he had a gun in his pocket. Sgt. Prospere
saw the gun and requested assistance over the radio. Another officer arrived and
removed a loaded gun from Samuel’s pocket. Neither Sgt. Prospere nor Detective
Passmore asked Samuel any questions before he mentioned the gun.
The gun was loaded. The gun was a 9mm semi-automatic Ruger that had
been manufactured in Arizona and had traveled in interstate commerce. Samuel
had three prior Florida convictions for possessing cocaine with the intent to
deliver, in violation of Fla. Stat. § 893.13(1)(a)(1).
A federal grand jury indicted Samuel for possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). Samuel moved to suppress a gun and ammunition seized from him during
the June 26, 2013, traffic stop and any statements attributed to him on that date.
Sgt. Prospere testified to the above facts and testified Samuel was both a
person of interest and a suspect in the homicide investigation. When asked to
identify the source of the information regarding the text messages, Sgt. Prospere
responded the investigation was still open, and the government stated it “wouldn’t
want to put any of the witnesses in jeopardy.” ROA at 182. Sgt. Prospere testified
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the information about the threatening messages had been received on June 12, the
day after the homicide. Various individuals also had identified Samuel on June 26.
Samuel called Detective Passmore, who testified he had been involved in the
investigation into the Luscant homicide. During that investigation, he and
Sgt. Prospere interviewed Michael Miller, whom officers had arrested for
aggravated assault with a firearm. Miller said he was an associate of Samuel and
told the officers where Samuel could be found. On the day the officers stopped
Samuel, Detective Passmore had been in the passenger’s seat of the car, when
Samuel approached them on the driver’s side. As the officers and Samuel
approached each other, Detective Passmore warned Sgt. Prospere about a bulge in
Samuel’s waistband. Based on his experience, Detective Passmore believed the
bulge, which was on the front right side of Samuel’s pants, was a gun. Detective
Passmore further testified, if he had not seen a bulge on Samuel, he still would
have stopped Samuel to speak with him about the homicide. After finding the gun,
the officers decided to take Samuel to the station for further questioning, instead of
discussing the homicide on the street.
During cross-examination by the government, Detective Passmore testified
Michael Miller did not tell officers Samuel was involved in the homicide. On June
26, Miller told officers Samuel was part of a group of people with whom the
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homicide victim “supposedly had some issues” related to money. ROA at 209.
Other witnesses previously had identified Samuel as a suspect in the homicide.
The district judge denied Samuel’s motion to suppress. The judge found the
officers’ testimony to be credible, and concluded a Terry1 stop was justified. The
judge explained the officers had reasonable suspicion to briefly stop Samuel to
speak with him about their investigation, and that suspicion was “heightened,”
when they saw the bulge. ROA at 221. The judge further explained both the
information implicating Samuel in the homicide and the bulge in his pocket were
valid and independent reasons to conduct a Terry stop.
The next month, Samuel signed a plea agreement. He agreed to enter a
conditional plea to the charged count but reserved his right to appeal the denial of
his suppression motion. Samuel also signed a factual proffer, and he
acknowledged he had three prior Florida felony convictions for possession with
intent to deliver cocaine.
Samuel’s presentence investigation report (“PSI”) reported several prior
Florida controlled-substance convictions, including possession with intent to sell
cocaine in April 2007, and in two separate cases in July 2011. The probation
officer calculated an initial base offense level of 24, under U.S.S.G. § 2K2.1(a)(2),
because Samuel had at least two prior felony controlled-substance-offense
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
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convictions. The probation officer, however, also determined Samuel was an
armed career criminal, who was subject to an offense level of 33, under U.S.S.G.
§ 4B1.4(b)(3)(B). The PSI awarded a 3-level, acceptance-of-responsibility
reduction, under U.S.S.G. § 3E1.1, which yielded a total offense level of 30.
The probation officer calculated a criminal-history score of 6 and a criminal
history category of III, based on Samuel’s prior controlled-substance convictions.
Under § 4B1.4(c)(3), Samuel was subject to a criminal history category of IV, as
an armed career criminal. Based on a total offense level of 30 and a criminal
history category of IV, the PSI calculated an initial Sentencing Guidelines range of
135-168 months of imprisonment. Because Samuel was subject to a statutory
minimum, 15-year prison term under Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), his Guidelines range became 180 months.
Samuel objected to the application of the ACCA. He contended his prior
convictions for sale or possession with intent to sell or deliver a controlled
substance, in violation of Fla. Stat. § 893.13, did not qualify as ACCA-predicate
“serious drug offenses,” because they did not require knowledge of the illicit
nature of the substances. For the same reasons, he argued his § 893.13 convictions
did not qualify as “controlled substance offenses” under § 2K2.1(a)(2), to qualify
him for a base offense level of 24. Absent the improper enhancements, his
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Guidelines range should have been based on an offense level of 12 and a criminal
history category of III.
During Samuel’s sentencing hearing, he renewed his objection to the ACCA
sentence enhancement. He argued that applying the categorical approach, as
required by Descamps v. United States, 133 S. Ct. 2276 (2013), and United States
v. Robinson, 583 F.3d 1292 (11th Cir. 2009) (per curiam), to an “indivisible”
statute such as § 893.13 entails no more than comparing the elements of the
offense of conviction to “the generic offense of possession with intent to
distribute.” ROA at 230. He contended the generic offense required knowledge of
the illicit nature of the substance. Florida is one of only two states that does not
include this mens rea requirement. Because § 893.13 criminalizes a broader range
of conduct than the generic offense, Samuel argued it never can qualify as an
ACCA-predicate. The absence of a mens rea requirement from the ACCA’s plain
language is not dispositive, because it does not exempt the required application of
“the formal categorical approach to determine what are the elements of the generic
offense.” ROA at 232.
The district judge overruled Samuel’s ACCA objection. The judge
explained the § 924(e) definition of “serious drug offense” is “an offense under
state law involving manufacturing, distributing, or possessing with intent to
distribute a controlled substance.” R. at 236. Thus, despite Florida’s elimination
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of a mens rea requirement from § 893.13, a conviction under that statute still
qualified as an ACCA predicate.
Samuel’s counsel agreed he was subject to a 15-year minimum sentence. He
also renewed all prior objections, including those in his PSI objections. The judge
stated he had “considered the statements of all parties, the presentence report
which contains the advisory guidelines and the statutory factors.” ROA at 237.
The judge calculated an offense level of 30, a criminal history category of IV, and
a mandatory minimum sentence of 180 months. The judge sentenced Samuel to
180 months of imprisonment, to be followed by 5 years of supervised release.
Samuel renewed his prior objections and also objected to the “procedural
necessity” of the sentence. ROA at 238.
Samuel argues on appeal the district judge erred in finding each of the
following was independently sufficient to justify a Terry stop: (1) one officer’s
observation of a bulge near Samuel’s waistband; and (2) the officers’ desire to
question him in connection with a homicide investigation. Samuel contends the
officers lacked reasonable suspicion to believe he had participated in the homicide,
and no exigent circumstances justified the stop. Samuel further asserts the
officers’ “source of information” did not identify him as a participant in the
homicide. Reply Br. at 3 (citation and internal quotation marks omitted). Nor did
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the officers identify specific, objective facts on which to base a belief that Samuel
may be armed and dangerous.
Samuel also argues his prior § 893.13 convictions do not qualify as ACCA-
predicate “serious drug offenses.” Samuel notes, in Donawa v. U.S. Att’y Gen.,
735 F.3d 1275 (11th Cir. 2013), we held a person may be convicted under
Florida’s possession-with-intent statute without knowledge of the nature of the
substance in his possession. The federal drug trafficking statute, however, requires
such knowledge. Samuel contends § 893.13 is a “non-generic” offense under the
“categorical approach” and, consequently, cannot qualify as an ACCA-predicate
offense. Appellant Br. at 25, 28. He further argues we have rejected the label-
based approach suggested by the government, in United States v. Palomino
Garcia, 606 F.3d 1317 (11th Cir. 2010).
II. DISCUSSION
A. Motion to Suppress
We review a district judge’s denial of a motion to suppress under a mixed
standard; we review the judge’s findings of fact for clear error and his application
of the law to those facts de novo. United States v. Gordon, 231 F.3d 750, 753-54
(11th Cir. 2000). When considering a ruling on a suppression motion, all facts are
construed in the light most favorable to the prevailing party. Id. at 754.
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The Fourth Amendment protects individuals from unreasonable searches and
seizures by government authorities. United States v. Garcia, 890 F.2d 355, 360
(11th Cir. 1989). Officers may stop and briefly detain a person to investigate a
reasonable suspicion of criminal activity even though probable cause may be
lacking. See Gordon, 231 F.3d at 754 (citing Terry, 392 U.S. 1, 88 S. Ct. 1868).
Similarly, if police “have a reasonable suspicion, grounded in specific and
articulable facts, that a person they encounter was involved in or is wanted in
connection with a completed felony,” a Terry stop may be made to investigate that
suspicion. United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680
(1985). When determining whether reasonable suspicion exists, the judge must
review the totality of the circumstances to ascertain whether officers had a
particularized and objective basis to suspect legal wrongdoing. United States v.
Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002).
In connection with a Terry stop, an officer may conduct a pat-down search if
he has reason to believe his own safety or the safety of others is at risk. United
States v. White, 593 F.3d 1199, 1202 (11th Cir. 2010). The officer need not be
certain an individual is armed, so long as a reasonably prudent person in the
circumstances would be entitled to believe his safety or that of others is in danger.
Id. at 1202-03.
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Based on the totality of the circumstances, reasonable suspicion justifying an
investigatory stop of Samuel was present. See Arvizu, 534 U.S. at 273, 122 S. Ct.
at 750; Gordon, 231 F.3d at 754. When they encountered Samuel, Sgt. Prospere
and Detective Passmore were engaged in the investigation of a homicide in which
the victim had been shot several times. They had received information that Samuel
had sent threatening text messages to the victim, and various individuals had
identified Samuel as having been involved in the homicide. Detective Passmore
identified Michael Miller, who told officers on the day of the encounter (1) that
Samuel was part of a group of people with whom the homicide victim “supposedly
had some issues” related to money, and (2) where Samuel could be found. ROA at
209.
When they first saw Samuel, whom Sgt. Prospere knew from their prior
history, Detective Passmore warned Sgt. Prospere about a bulge. Based on the
prior information potentially connecting Samuel to a shooting homicide, the
officers then were entitled to believe their safety was at risk, which justified a pat-
down. See White, 593 F.3d at 1202. Regardless of whether a Terry stop was
justified before the officers became aware of the bulge, the stop was not effected
until after Detective Passmore saw the bulge. When viewed in context with the
information connecting Samuel to a shooting homicide, the presence of the bulge
gave rise to reasonable suspicion he was involved in the homicide and potentially
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was armed and dangerous. See Arvizu, 534 U.S. at 273, 122 S. Ct. at 750; Hensley,
469 U.S. at 229, 105 S. Ct. at 680; White, 593 F.3d at 1202-03.
Samuel’s reliance on our decision in United States v. Valerio, 718 F.3d 1321
(11th Cir. 2013), is misplaced. In Valerio, Drug Enforcement Administration
(“DEA”) agents began conducting surveillance of the defendant, Valerio, after he
visited a hydroponic-gardening store. Valerio, 718 F.3d at 1322-23. After failing
to uncover evidence of drug activities, two DEA agents visited Valerio at his
home, where they blocked his exit, approached him with guns drawn, performed a
full-body pat-down, and subjected him to questioning, whereupon Valerio admitted
to growing marijuana. Id. We held the officers’ seizure of Valerio fell outside of
the Terry exception to the probable-cause requirement, because (1) the encounter
occurred nearly one week after the officers had last observed Valerio; and (2) no
contemporaneous observations of him required swift action. Id. at 1324-25.
Unlike the case in Valerio, the officers in this case had information
connecting Samuel to a particular crime. See Hensley, 469 U.S. at 229, 105 S. Ct.
at 680. Moreover, Detective Passmore’s observation of a bulge permitted a pat-
down in the interest of safety, particularly when viewed in context of a shooting
homicide investigation in which Samuel was a suspect. See White, 593 F.3d at
1202. In contrast, nothing in Valerio suggested Valerio was a suspect or person of
interest in a particular crime, much less a violent one, or that there was any reason
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to believe he may have been armed at the time of the stop-and-frisk. See Valerio,
718 F.3d 1321. Samuel has not shown the district judge erred when he denied
Samuel’s motion to suppress.
B. Armed Career Criminal Act
We review de novo whether a prior conviction qualifies as an ACCA
“serious drug offense.” Robinson, 583 F.3d at 1294. Under the ACCA, a
defendant convicted under § 922(g) is subject to a mandatory-minimum, 15-year
prison sentence if he has 3 prior convictions for serious drug offenses committed
on separate occasions. 18 U.S.C. § 924(e)(1). A “serious drug offense” is defined,
in relevant part, as “an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or distribute, a controlled
substance . . . , for which a maximum term of imprisonment of ten years or more is
prescribed by law.” Id. § 924(e)(2)(A)(ii). In determining whether a conviction
qualifies as an ACCA-predicate offense, judges generally apply a categorical
approach and look no further than the fact of conviction and the statutory definition
of the crime. Robinson, 583 F.3d at 1295.
The Florida cocaine statute in this case provides that “a person may not sell,
manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a
controlled substance.” Fla. Stat. § 893.13(1)(a). A violation of § 893.13(1)(a)
involving cocaine is a second-degree felony, punishable by up to 15 years of
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imprisonment. Id. § 893.13(1)(a)(1) (cross-referencing id. §§ 775.082(3)(c),
893.03(2)(a)(4)). Before 2002, Florida courts interpreted § 893.13 as including a
requirement that the defendant knew of the illicit nature of the drugs in his
possession. See Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1349-50 (11th
Cir. 2012), cert. denied, 133 S. Ct. 1856 (2013). In May 2002, the Florida
Legislature enacted Fla. Stat. § 893.101, which eliminated knowledge of the illicit
nature of the controlled substance as an element of controlled-substance crimes and
created an affirmative defense of lack of knowledge of the illicit nature of the
substance. Id. at 1350. The amendment did not, however, eliminate the element of
knowledge of the presence of the substance. Id.
The question presented in Descamps was whether a sentencing judge may
examine certain documents to determine whether a prior conviction for a crime
with a single, indivisible set of elements qualifies as a “violent felony” under the
ACCA’s enumerated-offenses provision, 18 U.S.C. § 924(e)(2)(B)(ii). 2 See
Descamps, 133 S. Ct. at 2281-83. When faced with a prior conviction for violating
an indivisible statute, one not containing alternative elements, the Supreme Court
concluded sentencing judges may apply only the “categorical approach,” which
2
This subsection defines “violent felony” as a crime that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
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entails no more than comparing the elements of the statute forming the basis of the
prior conviction with the elements of the “generic” version of that crime. See id.
In Donawa, we held the petitioner’s prior conviction for possession with
intent to sell or deliver cannabis, in violation of § 893.13(1)(a)(2), 3 as amended by
§ 893.101, did not qualify as an “aggravated felony” under the Immigration and
Nationality Act (“INA”). See Donawa, 735 F.3d at 1279, 1283-84. We first
concluded § 893.13(1)(a)(2) is an “indivisible” statute. Id. at 1283. To determine
whether it qualifies as an “aggravated felony” under the INA, judges may apply
only the categorical approach. Id. at 1282-83. Relevant to the facts in Donawa,
the definitions of “aggravated felony” included a “drug trafficking crime” as
defined in 18 U.S.C. § 924(c). Id. at 1280; see also 8 U.S.C. §§ 1101(a)(43)(B),
1227(a)(2)(A)(iii); 18 U.S.C. § 924(c)(2). Under § 924(c)(2), “drug trafficking
crime” is defined, in relevant part, as “any felony punishable under the Controlled
Substances Act (21 U.S.C. [§] 801 et seq.).” 18 U.S.C. § 924(c)(2).
Applying the categorical approach, we determined in Donawa that the least
of the acts criminalized by § 893.13(1)(a)(2) did not require knowledge of the
nature of the substance in one’s possession. Donawa, 735 F.3d at 1281. The
3
Subsection (1)(a)(2) of § 893.13 applies to offenses involving various controlled
substances other than cocaine. See Fla. Stat. § 893.13(1)(a)(2) (cross-referencing various
subsections of id. § 893.03). A violation of § 893.13(1)(a)(2) is punishable by up to five years of
imprisonment. See id. § 893.13(1)(a)(2) (cross-referencing id. § 775.082(3)(d)). Subsections
(1)(a)(1) and (1)(a)(2) otherwise are materially identical. See id. § 893.13(1)(a)(1), (1)(a)(2).
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“federal analogue” of the Florida statute, 21 U.S.C. § 841(a)(1), which is among
the drug trafficking offenses listed in § 924(c)(2), requires the government to show
the defendant knew of the nature of the substance in his possession. Id. We
concluded, § 893.13(1)(a)(2) did not qualify as a “drug trafficking aggravated
felony” under the INA. Id. at 1283.
The definition of “serious drug offense” in § 924(e) does not require
knowledge of the illicit nature of the controlled substance to have been an element
of a prior state crime. See 18 U.S.C. § 924(e)(2)(A)(ii). All that is required is that
the prior state crime (1) involved manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance, and (2) carried a
maximum prison term of ten years or more. See id. A violation of § 893.13(1)(a)
involving cocaine satisfies both of these requirements. See Fla. Stat.
§ 893.13(1)(a)(1) (cross-referencing id. §§ 775.082(3)(c), 893.03(2)(a)(4)).
Our decision in Donawa addressed the definitions of “aggravated felony”
under 8 U.S.C. § 1101(a)(43)(B) and “drug trafficking crime” under 18 U.S.C.
§ 924(c). Donawa, 735 F.3d at 1279-84. Each of these terms are defined
differently than the term “serious drug offense” under § 924(e)(2)(A)(ii). See 8
U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c), (e)(2)(A)(ii). Consequently, Donawa
is inapplicable here.
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Samuel’s arguments concerning “generic” crimes likewise are misplaced.
We addressed in Donawa whether § 893.13(1)(a)(2) fits within the “generic federal
definition” in the context of subsection (c) of § 924, which is not at issue here. See
id. at 1280-82. Subsection (c) defines “drug trafficking crime,” as “any felony
punishable under the Controlled Substances Act (21 U.S.C. [§] 801 et seq.).” 18
U.S.C. § 924(c)(2). Because the definition of the enhancement at issue in Donawa
referred to specific federal crimes, we concluded a “drug trafficking crime” in
§ 924(c) must fit within the “generic federal definition” of one of those specific
federal offenses, namely, 21 U.S.C. § 841(a), which was the “federal analogue” to
§ 893.13. See Donawa, 735 F.3d at 1280-81. The ACCA’s definition of “serious
drug offense,” however, contains no such examples of “federal analogue” or other
enumerated offenses. See 18 U.S.C. § 924(e)(2)(A)(ii); Donawa, 735 F.3d at 1281.
The question of whether § 893.13 qualifies as a “generic” offense is inapplicable,
because § 924(e)(2)(A)(ii) is self-defining without reference to any “generic” or
otherwise enumerated offenses. See 18 U.S.C. § 924(e)(2)(A)(ii).
Samuel’s reliance on our decision in Palomino Garcia also is misplaced. In
Palomino Garcia, we addressed the Sentencing Guidelines definition of “crime of
violence.” See Palomino Garcia, 606 F.3d at 1325-37. In Palomino Garcia, we
rejected a label-based approach to deciding whether a prior offense qualifies for
sentence-enhancement purposes. See id. at 1330-31. Samuel’s sentence
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enhancement was proper, however, because the definition of § 893.13, based on its
statutory text, satisfies the definition of “serious drug offense” in
§ 924(e)(2)(A)(ii), and not because of any label attached to § 893.13. Therefore,
the district judge properly determined Samuel’s post-2002 § 893.13 convictions
qualified as ACCA-predicate offenses. 4
AFFIRMED.
4
In view of our determination that Samuel’s post-2002 § 893.13 convictions qualified as
ACCA-predicates, it is unnecessary to address Samuel’s argument that his § 893.13 convictions
did not qualify as “controlled substance offenses” under U.S.S.G. §§ 2K2.1 and 4B1.2.
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