United States v. Charles Bailey , 522 F. App'x 497 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13599
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00124-CEH-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES BAILEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 13, 2013)
Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges.
PER CURIAM:
Charles Bailey appeals his 180-month sentence for possession of a firearm
and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Mr.
Bailey argues that the district court erred in determining that he had three
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qualifying prior convictions under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e). After reviewing the record and the parties’ briefs, we affirm.
I.
Mr. Bailey was arrested after law enforcement officers executed a search
warrant in his residence and seized various items, including a firearm, ammunition,
trace amounts of cocaine, a plastic bag containing 3.3 grams of cocaine, a plastic
bag containing marijuana, cash, and drug paraphernalia. See Presentence
Investigation Report ¶ 14. Prior to committing the instant offense, Mr. Bailey had
been convicted in state court for (1) sale or delivery of a controlled substance and
for possessing a controlled substance with intent to sell or deliver (Case No. 90-
4199); (2) sale or delivery of a controlled substance (Case No. 93-30897); (3)
trafficking in 28-200 grams of cocaine (Case No. 02-31522); and (4) resisting an
officer with violence to his person (Case No. 91-5074). See id. ¶¶ 18, 38. Based
on these convictions, the probation office recommended that the district court
sentence Mr. Bailey as an armed career criminal pursuant to the ACCA. Mr.
Bailey objected, arguing that the convictions were not qualifying predicate
convictions. The district court overruled the objections and sentenced Mr. Bailey
to the statutory minimum term of 180 months.
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II.
The ACCA imposes a mandatory sentence of at least 15 years in prison for
any felon who possesses a firearm or ammunition, in violation of 18 U.S.C. §
922(g)(1), if he “has three previous convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different from one another.” 18
U.S.C. § 924(e)(1). A “violent felony” means any felony that “has as an element
the use, attempted use, or threatened use of physical force against the person of
another . . . or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” § 924(e)(2)(B). A “serious drug offense” includes a
state offense “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.” § 924(e)(2)(A)(ii). In
determining whether a conviction qualifies as a predicate offense for ACCA
purposes, courts generally apply a categorical approach, looking no further than the
fact of conviction and the statutory definition of the offense. United States v.
Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). We review de novo
whether a conviction is a “violent felony” or a “serious drug offense” pursuant to
the ACCA. United States v. James, 430 F.3d 1150, 1153 (11th Cir. 2005).
Mr. Bailey argues that the narcotics convictions in Case Nos. 90-4199 and
93-30897 did not qualify as “serious drug offense[s]” because at the time he
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committed those offenses the statute of conviction, Fla. Stat. § 893.13, applied to
offenses that involved the sale, manufacture, or delivery of a controlled substance
and to offenses that involved the mere purchase of a controlled substance. Relying
on one of our prior cases, he argues that the judgments for those convictions did
not resolve the ambiguity because “sale or delivery” is a “term of art as it relates to
that statute,” and does not rule out the possibility that he was convicted of
purchasing a controlled substance, which would not qualify under the ACCA. See
United States v. Hernandez, 145 F.3d 1433 (11th Cir. 1998).
In Hernandez we held that the district court erroneously determined that Mr.
Hernandez’s prior conviction under the same statute, Fla. Stat. § 893.13,1 qualified
him for a sentence enhancement as a career offender under U.S.S.G. § 4B1.1. Id.
at 1440.2 We ruled that the district court had erred by consulting arrest affidavits
to characterize the predicate offenses, emphasizing that the district court’s “inquiry
in resolving the ambiguity of the [ ] convictions should . . . be limited to examining
easily produced and evaluated court documents, such as any helpful plea
1
The 1993 version of the statute at issue in Hernandez made it “unlawful for any person to sell,
purchase, manufacture, deliver, or possess with the intent to sell a controlled substance.”
Hernandez, 145 F.3d at 1440.
2
Under the Sentencing Guidelines, a “defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed the instant offense of conviction; (2)
the instant offense of conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
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agreements or plea transcripts, any presentencing reports adopted by the sentencing
judges, and any findings made by the sentencing judges.” Id.
We agree with the district court in this case that it is “clear on the face of the
judgment[s]” that Mr. Bailey was convicted of sale or delivery, although the statute
at the time encompassed purchase as well. See Judgment in Case No. 90-4199,
Govt.’s Ex. 1 (reflecting conviction for “Unl. Sale/Deliv. Cont. Subst.”); Judgment
in Case No. 93-30897, Govt.’s Ex. 2 (reflecting conviction for “Sale or Delivery of
a Controlled Substance”). In Hernandez, the language in Mr. Hernandez’s state
court judgments tracked the language in the statute and thus did not indicate
whether the convictions were for the purchase of the controlled substances or for
the sale of the controlled substances. Here, however, both judgments state “sale or
delivery,” with no mention of “purchase,” and thus establish that Mr. Bailey’s
convictions—for sale or delivery of a controlled substance and for possession of a
controlled substance with intent to sell or deliver—are serious drug offenses under
the ACCA.
Mr. Bailey also argues that his conviction for trafficking in 28-200 grams of
cocaine in Case No. 02-31522 did not qualify as a serious drug offense. Mr.
Bailey acknowledges that he raised this objection solely to preserve it for further
review “because there is a conflict in the circuits.” Appellant’s Brief at 14 (citing
United States v. Brandon, 247 F.3d 186 (4th Cir. 2001)). As Mr. Bailey
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recognizes, his argument is foreclosed by our precedent. See James, 430 F.3d at
1155 (holding that a violation of Florida’s drug trafficking statute, Fla. Stat. §
893.135, constitutes an ACCA predicate offense because the “statute necessarily
infers an intent to distribute [cocaine] once a defendant possesses 28 grams or
more”).
Finally, Mr. Bailey’s argument that his conviction for resisting an officer
with violence to his person in Case No. 91-5074 does not qualify as a “violent
felony” is also foreclosed by precedent. See United States v. Nix, 628 F.3d 1341,
1342 (11th Cir. 2010) (holding that a Florida conviction for resisting an officer
with violence is a “violent felony” under the ACCA).
III.
We affirm the district court’s imposition of the mandatory minimum
sentence under the ACCA.
AFFIRMED.
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