United States v. Courtney Mays , 300 F. App'x 735 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 19, 2008
No. 08-12237 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00307-CR-VEH-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
COURTNEY MAYS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 19, 2008)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
The government appeals appellee Courtney Mays’s 51-month sentence for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
challenging the district court’s determination that Mays was not an armed career
criminal, pursuant to 18 U.S.C. § 924(e). The government argues that the district
court erred in deciding that Mays's prior Alabama convictions for first-degree
possession of marijuana for other than personal use were not "serious drug
offense[s]," for purposes of Armed Career Criminal Act (“ACCA”) enhancement.
Specifically, the government argues that, pursuant to our unpublished opinion in
United States v. Barnes, No. 06-14840 (11th Cir. June 6, 2008) (unpublished),
possession of marijuana for other than personal use is a serious drug offense under
the ACCA. It further argues that the plain meaning of possession of marijuana "for
other than personal use," under Ala. Code § 13A-12-213(a)(1), is possession for
someone else's use. The government contends that the intent to distribute may be
inferred from possession of a certain amount of drugs under both United States v.
James, 430 F.3d 1150, 1154-55 (11th Cir. 2005), and United States v.
Madera-Madera, 333 F.3d 1228, 1232-33 (11th Cir. 2003), as well as from
possession for other than personal use. Finally, the government argues that Mays
cannot invoke the rule of lenity because the Alabama statute is unambiguous.
We review de novo whether a prior conviction is a serious drug offense
within the meaning of the ACCA. James, 430 F.3d at 1153. Section 922(g)
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prohibits possession of firearms by any person, who has been convicted of a crime
punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 922(g).
Section 924 sets forth the penalties for § 922 violations. See 18 U.S.C. § 924. If a
defendant has three previous convictions for a violent felony or serious drug
offense, the defendant must be imprisoned for not less than 15 years (180 months).
18 U.S.C. § 924(e). A serious drug offense includes offenses “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.” 18 U.S.C. § 924(e)(2)(A)(ii).
Pursuant to Ala. Code § 13A-12-213, a person commits the crime of
unlawful possession of marijuana in the first degree if: (1) marijuana is possessed
for other than personal use; or (2) marijuana is possessed for personal use after a
previous conviction for unlawful possession of marijuana in the second degree or
unlawful possession for personal use. Ala. Code § 13A-12-213. The offense is
punished as a Class C felony, with an imprisonment range of not more than ten
years, nor less than one year and one day. Ala. Code §§13A-5-6(a)(3), 13A-12-
213.
After reviewing the record and reading the parties’ briefs, we conclude that
the district court erred in finding that Mays’s prior convictions for first-degree
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marijuana possession were not “serious drug offenses” for purposes of the ACCA.
As we recently held in United States v. Barnes, supra, possession of marijuana for
other than personal use necessarily implies intent to distribute marijuana for
someone else’s use. Because this offense categorically involves possession with
intent to distribute and is punishable by up to ten years of imprisonment, it is a
serious drug offense for purposes of the ACCA. Therefore, we conclude that the
district court should have adopted the sentencing guidelines calculation in the pre-
sentence report and should have imposed a sentence of at least 180 months of
imprisonment.
Accordingly, we vacate Mays’s sentence and remand this case for further
proceedings consistent with this opinion.
VACATED and REMANDED.
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