United States v. McAbee ( 2023 )

Case: 22-60565 Document: 00516971072 Page: 1 Date Filed: 11/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 16, 2023
No. 22-60565 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Benjamin Demond McAbee,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:20-CR-150-1
______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges.
Per Curiam: *
Appellant Benjamin McAbee (“McAbee”) appeals the district
court’s sentence. For the reasons explained below, we VACATE and
REMAND with instructions.
I. Background
In 1999, McAbee pled guilty to delivery of cocaine in violation of
Mississippi law. In 2001, McAbee pled guilty to aggravated assault, after he
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60565 Document: 00516971072 Page: 2 Date Filed: 11/16/2023
No. 22-60565
hit his victim with a stick and stabbed him with a shank. In 2003, McAbee
pled guilty to manslaughter after shooting and killing his victim during an
argument.
In 2020, a Jackson Police Department officer was patrolling on foot
when he smelled marijuana. The officer approached McAbee, who was in the
parking lot of a gas station. The officer noticed a plastic bag containing what
appeared to be marijuana next to McAbee. McAbee confirmed to the officer
that the marijuana was his, and when asked if he had any other drugs on him,
McAbee removed another bag of marijuana from his front right pocket. The
officer placed McAbee under arrest. After arresting McAbee, the officer
noticed a green and black 9mm pistol on the ground near where the officer
found McAbee. Regarding the gun, McAbee stated “[y]eah that’s my gun,
I’m not going to even lie. I’m going back to jail because I am a convicted
felon.”
In 2022, McAbee pled guilty pursuant to a plea agreement to one
count of being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). McAbee’s plea agreement included a section titled “Waivers,” in
which he agreed that he “expressly waive[d] . . . the right to appeal the
conviction and sentence imposed in this case, or the manner in which that
sentence was imposed . . . on any ground whatsoever,” with an exception for
a claim for ineffective assistance of counsel. McAbee “further
acknowledge[d] and agree[d] that any factual issues regarding the sentencing
will be resolved by the sentencing judge” and that “in making its sentencing
decision, the district court may consider any relevant evidence without
regard to its admissibility under the rules of evidence applicable at trial.” The
plea agreement also outlined penalties, stating that the statutory maximum
for a violation of the charged offense was “not more than 10 years in prison;
a term of supervised release of not more than three (3) years; and a fine of up
to $250,000.00.” However, the plea agreement explicitly stated that if
2
Case: 22-60565 Document: 00516971072 Page: 3 Date Filed: 11/16/2023
No. 22-60565
McAbee was “determined to be an Armed Career Criminal, the sentence
shall be not less than fifteen years nor more than life in prison; a term of
supervised release of not more than five years; and a fine of up to
$250,000.00.”
The presentence report (“PSR”) determined that McAbee qualified
for enhanced sentencing under § 924(e) of the Armed Career Criminal Act
(“ACCA”) and identified a mandatory minimum term of 15 years of
imprisonment and a corresponding guidelines term of 180 months. McAbee
objected to the PSR, and in his sentencing memorandum, he argued that two
of his three prior convictions did not meet the definition of a “serious drug
offense” or a “violent felony” under the ACCA; he raised the same
arguments during the sentencing hearing. The district court overruled his
objections, adopted the findings in the PSR, and sentenced McAbee under
the ACCA to a 180-month term of imprisonment and five years of supervised
release. McAbee timely appealed.
II. Legal Standard
Preserved challenges to “legal conclusions underlying a district
court’s application of” the ACCA are reviewed de novo. United States v.
James, 950 F.3d 289, 291 (5th Cir. 2020).
III. Discussion
The ACCA mandates a 15‐year minimum imprisonment sentence for
a defendant convicted of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g) if the defendant has three prior convictions for a
“serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e). The
district court identified McAbee’s previous convictions for delivery of
cocaine, aggravated assault, and manslaughter as the predicate offenses for
applying the ACCA enhancement. On appeal, McAbee only challenges the
3
Case: 22-60565 Document: 00516971072 Page: 4 Date Filed: 11/16/2023
No. 22-60565
district court’s categorization of his 1999 conviction for delivery of cocaine
as a serious drug offense.
McAbee argues that because “the government failed to produce
Shepard 1 approved documents evidencing that Mr. McAbee’s conviction for
delivery of cocaine was punishable by ten (10) years or more, the delivery of
cocaine conviction does not constitute a serious drug offense under the
ACCA.” In Shepard, the Supreme Court limited district courts’ inquiries
into determining the character of an offense to “the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant
assented” or “some comparable judicial record” of information about the
“factual basis for the plea.” Shepard, 544 U.S. at 16, 26. The government
responded in its brief that “the record reflects that the court considered the
Shepard documents” and references the PSR attachments which included
the relevant indictment, sentencing order, and the Mississippi statute.
Our review of the record shows there are no Shepard approved
documents supporting McAbee’s delivery of cocaine conviction. The
indictment and sentencing order are silent as to the corresponding subsection
under which McAbee was sentenced. Descamps v. United States, 570 U.S.
254, 257, 262 (2013). The government argues McAbee waived his right to
appeal the conviction and sentence imposed in this case. And we have
previously held that a defendant may waive his right to appeal his conviction
and sentence notwithstanding a district court’s findings of facts not admitted
in his guilty plea. See United States v. Bond, 414 F.3d 542, 544-46 (5th Cir.
2005); see also United States v. Meredith, 52 F.4th 984, 987-88 (5th Cir. 2022)
(quoting United States v. Smith, 404 F. App’x 884, 887 (5th Cir. 2010 (per
_____________________
1
Shepard v. United States, 544 U.S. 13 (2005).
4
Case: 22-60565 Document: 00516971072 Page: 5 Date Filed: 11/16/2023
No. 22-60565
curiam) (“We enforce broad appellate waivers and have declined to examine
the correctness of applying a particular guideline where the defendant has
agreed to a general waiver of the right to appeal the sentence.”)). Yet the
district court judge here has not had the opportunity to determine whether
the plea agreement encompasses waiver of Shepard approved documents. We
are thus compelled to remand this matter to the district court for the
following limited proceedings:
1) to determine whether the government can provide evidence
regarding McAbee’s 1999 delivery of cocaine conviction consistent
with Shepard; and
2) in the event the government cannot provide such evidence, to hold
a hearing on whether the plea agreement’s waiver provision
encompasses the requirement for Shepard approved documents in
determining the ACCA’s applicability.
IV. Conclusion
Accordingly, we VACATE and REMAND for further proceedings.
The government’s motion to dismiss is DENIED. Moreover, the motion for
leave to supplement brief is DENIED.
5
Case: 22-60565 Document: 00516971072 Page: 6 Date Filed: 11/16/2023
No. 22-60565
James L. Dennis, Circuit Judge, concurring in the judgment and
dissenting in part:
I concur in the judgment reversing the district court. I join my
colleagues in vacating Mr. McAbee’s sentence because the Shepard evidence
is inconclusive about whether his 1999 conviction for delivery of cocaine
constitutes a “serious drug offense” under the Armed Career Criminal Act
(“ACCA”). 1 I also agree with the panel majority’s recognition that Mr.
McAbee did not waive his right to bring this appeal. However, I disagree with
the panel majority’s remand instruction for the district court “to hold a
hearing on whether the plea agreement’s waiver provision encompasses the
requirement for Shepard approved documents in determining the ACCA’s
applicability” but only “in the event the government cannot provide
[conclusive Shepard] evidence.” Ante, at 5. Because I would remand for
resentencing without instructions, I respectfully dissent.
* * *
As the panel majority explains, we are faced with a criminal appeal
from a district court’s judgment imposing a fifteen-year term of
imprisonment at sentencing. The hefty sentence stems from Mr. McAbee’s
possession of a firearm as a convicted felon in violation of 18 U.S.C. §
922(g)(1) (“It shall be unlawful for any person . . . who has been convicted in
any court of, a crime punishable for a term exceeding one year . . . to . . .
possess in or affecting commerce, any firearm or ammunition.”). Mr.
McAbee was charged by a one-count indictment for being a felon in
possession of a firearm, and he entered a plea of guilty pursuant to a written
plea agreement with the Government. The district court accepted Mr.
McAbee’s guilty plea and sentenced him to a fifteen-year term of
_____________________
1
Shepard v. United States, 544 U.S. 13 (2005).
6
Case: 22-60565 Document: 00516971072 Page: 7 Date Filed: 11/16/2023
No. 22-60565
imprisonment, finding that he qualified for an enhancement under the ACCA
because he had three prior convictions for “violent offenses” or “serious
drug offenses.” That enhancement prescribes a fifteen-year statutory
minimum term of imprisonment. Without the enhancement, the statute
applicable to Mr. McAbee’s offense imposes a ten-year statutory maximum
term of imprisonment. 2 See 18 U.S.C. § 924(a)(2) (2018) (amended 2022).
Mr. McAbee appealed his sentence and argues, first, that his 1999 conviction
for “delivery of cocaine” does not constitute a “serious drug offense” and,
second, that he did not waive his right to appeal a sentence imposed in excess
of a statutory maximum term of imprisonment.
With respect to the first issue, the panel majority appropriately finds
that Mr. McAbee does not qualify for the ACCA sentencing enhancement
because we do not know whether his “delivery of cocaine offense” is a
“serious drug offense.” The ACCA defines a “serious drug offense” to
include “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.” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). “[T]here are no
Shepard approved documents supporting McAbee’s delivery of cocaine
conviction . . . [because] [t]he indictment and sentencing order are silent as
to the corresponding subsection under which McAbee was sentenced” in
1999. Ante, at 4. Given that the subsection of the statute Mr. McAbee was
convicted under in 1999 is unknown and considering that Mr. McAbee was
only sentenced to five years of imprisonment for that conviction, we cannot
say whether the crime carried with it the possibility of “ten years or more”
_____________________
2
Mr. McAbee committed the instant offense before Congress increased the
statutory maximum to 15 years. See Bipartisan Safer Communities Act, Pub. L. No. 117-
159, tit. II, § 12004, 136 Stat. 1313, 1327 (2022) (codified at 18 U.S.C. § 924(a)(8)).
7
Case: 22-60565 Document: 00516971072 Page: 8 Date Filed: 11/16/2023
No. 22-60565
imprisonment. The district court therefore did not have a sufficient basis to
find the 1999 conviction was a “serious drug offense” and apply the ACCA
sentencing enhancement. Mr. McAbee’s sentence must be vacated.
The second issue raised by the parties is whether Mr. McAbee waived
his right to bring this appeal in light of appeal waiver language included in his
plea agreement. 3 The panel majority fails to squarely address the issue, but,
by proceeding to the merits and opting against granting the Government’s
motion to dismiss, the majority implicitly—and correctly—rejects the
Government’s contention that Mr. McAbee waived his right to bring the
instant appeal. 4 See United States v. Leal, 933 F.3d 426 (5th Cir. 2019)
(holding that a defendant never waives his right to appeal a sentence imposed
in excess of a statutory maximum when properly raised); see also United States
v. Barnes, 953 F.3d 383, 388-89 (5th Cir. 2020) (noting that a sentence
imposed in excess of a statutory maximum is one exception to the general
rule that a knowing and voluntary appellate waiver is enforceable); see also
United States v. Fields, No. 20-60148, 832 F. App’x 317, 317 (5th Cir. 2020)
(unpublished) (holding that a misapplication of the ACCA sentencing
enhancement results in a sentence that is in excess of the statutory maximum
term of imprisonment, meaning an appeal of the ACCA’s application is not
barred by an appeal waiver under Leal); see also United States v. House, No.
09-40302, 394 F. App’x 122, 124 n.6 (5th Cir. 2010) (unpublished) (same).
Though the parties argue over whether Mr. McAbee waived his right
_____________________
3
Mr. McAbee’s plea agreement says “Defendant . . . waives . . . the right to appeal
the . . . sentence imposed in this case . . . on any ground whatsoever.” We review “de novo
whether an appeal waiver bars an appeal.” United States v. Keele, 755 F.3d 752, 754 (5th Cir.
2014) (citing United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002)).
4
The Government filed a motion to dismiss the appeal based on the appeal waiver
in the plea agreement, which we denied.
8
Case: 22-60565 Document: 00516971072 Page: 9 Date Filed: 11/16/2023
No. 22-60565
to bring this appeal, the panel majority remands for the district court to
determine whether Mr. McAbee waived a different right—his right to
demand that the district court, presumably at a resentencing hearing, limit its
ACCA review to Shepard evidence. 5 In Shepard, the Supreme Court limited
district courts’ inquiries into determining the character of a prior offense for
ACCA purposes to so-called Shepard evidence, i.e., “the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant
assented” or “some comparable judicial record” of information about the
“factual basis of the plea.” Shepard, 544 U.S. at 16, 26. The panel majority
says the district court “has not had the opportunity to” decide the waiver
issue that only the majority has raised and remands for further deliberation—
but only if the Government cannot provide any other Shepard-approved
documents clarifying whether Mr. McAbee’s “delivery of cocaine”
conviction is a serious drug offense. Ante, at 5.
_____________________
5
The panel majority deviates significantly from the principle of party presentation
of argument. Not even the Government argues that Mr. McAbee waived the Shepard
evidence limitation on the district court’s review. See Green Valley Special Util. Dist. v. City
of Schertz, Tex., 969 F.3d 460, 474 (5th Cir. 2020) (en banc) (recognizing that neutral
arbiters of justice do not “make a party’s argument for it in the first place”); see also United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“In our adversarial system of
adjudication, we follow the principle of party presentation.”); Castro v. United States, 540
U.S. 375, 381-83 (2003) (Scalia, J., concurring in part and concurring in the judgment)
(“Our adversary system is designed around the premise that the parties know what is best
for them, and are responsible for advancing the facts and arguments entitling them to
relief.”); United States v. Samuels, 808 F.3d 1298, 1301 (8th Cir. 1987) (R. Arnold, J.,
concurring in denial of reh’g en banc) (“Counsel almost always know a great deal more
about their cases than we do, and this must be particularly true of counsel for the United
States, the richest, most powerful, and best represented litigant to appear before us.”).
9
Case: 22-60565 Document: 00516971072 Page: 10 Date Filed: 11/16/2023
No. 22-60565
One need not do more than restate the majority’s remand instructions
to demonstrate that both are poorly thought out. It is unsound to remand for
a hearing on whether Mr. McAbee waived the requirement that the district
court consider only Shepard evidence while simultaneously vacating a
sentence for a lack of Shepard evidence and remanding in the first instance to
see if there is more Shepard evidence. It is abundantly clear that the panel
majority does not actually believe Mr. McAbee waived Shepard’s limitation
on the district court’s review. If it did, why would the panel majority vacate
Mr. McAbee’s sentence for lack of Shepard evidence? And why would the
panel majority also initially require the Government to determine whether
other Shepard evidence exists on remand? I would cut to the chase and not
waste the district court and parties’ resources by mandating preparation for
and participation in a hearing on a question that no one has raised and, in any
event, one that we already know the answer to.
Turning to that answer, the plea agreement’s waiver provision does
not “encompass” the requirement that the district court, at resentencing,
review only Shepard-approved documents to determine whether Mr.
McAbee qualifies for the ACCA enhancement. We interpret plea agreements
employing “ordinary principles of contract interpretation” and, in
particular, “constru[e] waivers narrowly and against the Government.”
Keele, 755 F.3d at 754 (citing United States v. Palmer, 456 F.3d 484, 488 (5th
Cir. 2006)). The waiver provision in Mr. McAbee’s plea agreement reads in
relevant part: “Defendant . . . hereby expressly waives . . . the right to appeal
the conviction and sentence imposed in this case, or the manner in which that
sentence was imposed . . . on any ground whatsoever[.]” 6 The right to appeal
_____________________
6
Moreover, the provision in Mr. McAbee’s plea agreement where he “agree[d]
that, in making its sentencing decision, the district court may consider any relevant
evidence without regard to its admissibility” does not support a finding that Mr. McAbee
“waived” the Shepard evidence limitation either. Shepard evidence is the only “relevant
10
Case: 22-60565 Document: 00516971072 Page: 11 Date Filed: 11/16/2023
No. 22-60565
a judgment entered after a sentencing hearing is distinct from a defendant’s
right to demand the district court comply with Supreme Court precedent by
limiting its ACCA sentencing enhancement review to Shepard evidence.
Certainly, Mr. McAbee has not waived that latter right by way of his plea
agreement’s appeal waiver provision. No court has ever found a defendant to
have waived the Shepard evidence limitation, and we should caution the
district court against haphazardly being the first.
* * *
The panel majority’s remand instructions raise more questions than
answers. The panel should vacate Mr. McAbee’s sentence and remand for
resentencing without the inclusion of instructions.
I respectfully dissent.
_____________________
evidence” when it comes to determining the character of a prior offense for ACCA
purposes. Shepard, 544 U.S. at 16, 26.
11