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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13677
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20722-KMW-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DALLAS JEROME WIMS,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 1, 2020)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Dallas Wims appeals his sentence of 15-years’ imprisonment for possession
of a firearm and ammunition by a convicted felon in violation of
18 U.S.C.
§§ 922(g)(1) and 924(e)(1). Mr. Wims raises two issues on appeal. First, he asserts
that the limitations accompanying the First Step Act’s creation of the term “serious
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drug felony” for sentencing enhancements under the CSA apply also to his ACCA
predicate offenses. Second, he argues that his 15-year sentence under the ACCA
violates the Eighth Amendment. After a review of the record and the parties’ briefs,
we affirm the district court’s sentence.1
I
In his appeal, the parties’ dispute centers around the interpretation of three
statutes: the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e); the
Controlled Substances Act (“CSA”),
21 U.S.C. § 801 et seq.; and the First Step Act
of 2018, Pub. L. No. 115-391,
132 Stat. 5194 (2018) (“First Step Act”). We
summarize the relevant statutes below.
The ACCA provides for sentence enhancements for certain felons who are in
unlawful possession of a firearm. Under the ACCA, a defendant convicted of being
a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1), faces a
mandatory minimum 15-year sentence if he has three or more prior convictions for
a “violent felony” and/or “serious drug offense.” See
18 U.S.C. § 924(e)(1). Those
offenses, commonly referred to as predicate offenses, are defined in
18 U.S.C. §
924(e)(2). The district court enhanced Mr. Wims’ sentence under the ACCA.
The CSA regulates certain substances under federal law, in part by
establishing drug offenses and sentencing enhancements. For example, prior to the
1
As we write for the parties, we set out only what is necessary to address Mr. Wims’ arguments.
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promulgation of the First Step Act, under the CSA a person convicted of distributing
280 grams of crack cocaine was subject to a mandatory minimum sentence of 20
years if he had been previously convicted of committing a “felony drug offense.”
See
21 U.S.C. §§ 841(a), (b)(1)(A) (2012). That prior version of the CSA defined
the term “felony drug offense” as “an offense that is punishable by imprisonment for
more than one year under any law of the United States or of a State . . . that prohibits
or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances.”
21 U.S.C. § 802(44) (2012). Mr. Wims was not
convicted of violating, nor was his sentence enhanced under, the CSA.
In 2018, Congress enacted the First Step Act with the goal of reforming the
nation’s prison and sentencing systems. As relevant here, § 401 of the First Step Act
amended the CSA to replace the term “felony drug offense” with the term “serious
drug felony.” See First Step Act § 401(a). See also
21 U.S.C. §§ 802(57),
841(b)(1)(A). Under the amended version of the CSA, an offense constitutes a
“serious drug felony” if it meets three elements. The first element is a foundational
one, defining a “serious drug felony” as an offense described in 18 U.S.C §
924(e)(2)—the provision that defines the ACCA’s predicate offenses. See
21 U.S.C.
§ 802(57);
18 U.S.C. § 924(e)(2). The latter two elements are limiting elements. For
an offense to constitute a “serious drug felony,” the offender must have (i) served a
term of imprisonment of over a year, and (ii) been released from imprisonment no
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more than 15 years prior to the commencement of the instant offense. See
21 U.S.C.
§ 802(57). Theoretically, these limiting elements make the application of the CSA’s
sentencing enhancements less likely.
II
Mr. Wims pled guilty to violating
18 U.S.C. §§ 922(g)(1) and 924(e). In his
plea agreement, Mr. Wims stipulated that the district court was required to impose a
statutory minimum 15-year term under the ACCA. The district court accordingly
applied the ACCA enhancement and sentenced him to that statutory minimum, based
on his prior predicate convictions.
Mr. Wims first argues that because the foundational element of the term
“serious drug felony” in the CSA is a reference to the ACCA’s predicate offenses,
we should read § 401 of First Step Act as having incorporated the two limiting
elements of the term “serious drug felony” into the definition of the ACCA predicate
offenses. According to Mr. Wims, because his ACCA predicate offenses do not meet
either of the two limiting elements, his sentence should not have been enhanced
under the ACCA. We disagree.
We review the district court’s interpretation of a statute de novo. See United
States v. Zuniga-Arteaga,
681 F.3d 1220, 1223 (11th Cir. 2012). The starting point
of statutory interpretation is “the language of the statute itself,” and we consider the
specific context in which the language at issue is used and the broader context of the
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statute.
Id. (internal quotation marks omitted). And “[i]f this analysis reveals that the
provision has a plain and unambiguous meaning with regard to the particular dispute
in the case and the statutory scheme is coherent and consistent, then the inquiry is
complete.”
Id. (internal quotation marks omitted).
Mr. Wims’ arguments are based solely on policy and lack any analysis of the
text of the relevant statutes. And that text is clear: § 401 of the First Step Act replaced
the term “felony drug offense” with the term “serious drug felony” in the CSA, see
First Step Act § 401(a), and left untouched the definitions of the ACCA’s predicate
offenses. Compare 18 U.S.C § 924(e)(2) (2012) with 18 U.S.C § 924(e)(2). Both we
and the Fourth Circuit have already so held. See United States v. Smith,
798 Fed.
Appx. 473, 476 (11th Cir. 2020); United States v. Edwards,
767 Fed. Appx. 546,
546–47 (4th Cir. 2019).
Smith is an unpublished opinion, but we agree with it. Because the First Step
Act does not change the definition of the ACCA’s predicate offenses, we affirm the
district court on this issue.2
III
Mr. Wims argues that his ACCA sentencing enhancement violates the Eight
2
Mr. Wims also argues that we should apply the rule of lenity when construing the First Step Act.
But the relevant provisions of the First Step Act, the CSA, and the ACCA are clear and
unambiguous. Accordingly, the rule of lenity is inapplicable. See United States v. Phifer,
909 F.3d
372, 383–84 (11th Cir. 2018).
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Amendment’s prohibition on cruel and unusual punishment. According to Mr.
Wims, his 15-year sentence under the ACCA is disproportionate because it increased
what would otherwise have been 12–18-month sentence for his instant offense based
on remote predicate offenses. The government rebuts Mr. Wims’ Eighth
Amendment argument on the merits, and also asserts that, as a threshold matter, Mr.
Wims waived his right to appeal on this ground in his plea agreement. On the issue
of the appeal waiver, Mr. Wims responds with various arguments, including that the
government waived its right to enforce the appeal waiver by failing to enforce it at
the district court, and that Mr. Wims did not agree to the appeal waiver knowing and
voluntarily. Mr. Wims’ Eighth Amendment argument fails. Assuming that he
succeeded in his challenge to the appeal waiver, he loses on the merits.
Mr. Wims raises his Eighth Amendment challenge for the first time on appeal,
and so we review it only for plain error. See United States v. Henderson,
409 F.3d
1293, 1307 (11th Cir. 2005). Under plain error review we, at our discretion, may
correct an error where the defendant demonstrates that (i) an error occurred; (ii) the
error was plain; (iii) the error affects substantial rights; and (iv) the error seriously
affects the fairness, integrity or public reputation of judicial proceedings. See
Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904-05, 1908-09 (2018). In most
scenarios, “there can be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving it.” United States v. Lange,
862 F.3d 1290,
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1296 (11th Cir. 2017) (quoting United States v. Lejarde-Rada,
319 F.3d 1288, 1291
(11th Cir. 2003)).
Mr. Wims has not identified any precedent that would lead us to conclude that
the district court plainly erred in sentencing him to the minimum mandatory under
the ACCA. On the other hand, we have upheld even longer sentences under the
ACCA. See United States v. Lyons,
403 F.3d 1248, 1257 (11th Cir. 2005) (rejecting
an Eighth Amendment challenge to a 235-month sentence under the ACCA). Absent
the existence of plain error, Mr. Wims’ Eighth Amendment challenge fails.
IV
For the foregoing reasons, we affirm Mr. Wims’ sentence of 15 years’
imprisonment under the ACCA.
AFFIRMED.
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