United States v. Jermaine James ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3198
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jermaine James
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: June 10, 2019
Filed: October 29, 2019
[Unpublished]
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Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Jermaine James pleaded guilty to distributing five grams or more of actual
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). James
was sentenced to 120 months imprisonment, the bottom of the resulting advisory
guidelines range after the district court1 determined that he is a “career offender”
because he has “at least two prior felony convictions of either a crime of violence or
a controlled substance offense.” USSG § 4B1.1(a). James appeals, arguing the court
erred in concluding that his 2006 Arkansas conviction for battery in the first degree
was a “crime of violence,” and that his 2012 Arkansas conviction for conspiracy to
deliver a controlled substance was a “controlled substance offense,” as the career
offender guideline provisions define those terms for purposes of the career offender
enhancement. Reviewing these issues de novo, we affirm. See United States v.
Eason, 643 F.3d 622, 623 (8th Cir. 2011) (standard of review), cert. denied, 565 U.S.
1132 (2012).
1. The career offender guidelines define “crime of violence” to include “any
offense under federal or state law, punishable by imprisonment for a term exceeding
one year, that . . . has as an element the use, attempted use, or threatened use of
physical force against the person of another.” § 4B1.2(a)(1). “Physical force” means
“violent force -- that is, force capable of causing physical pain or injury to another
person.” Johnson v. United States, 559 U.S. 133, 140 (2010).
James was convicted of violating Ark. Code Ann. § 5-13-201(a)(1), which
provides that a person commits battery in the first degree if, “[w]ith the purpose of
causing serious physical injury to another person, the person causes serious physical
injury to any person by means of a deadly weapon.” As James acknowledges, we
have squarely held that § 5-13-201(a)(1) is a crime of violence under the guidelines
force clause because “a defendant exercises physical force to violate subsection (a)(1)
by causing serious physical injury as Arkansas defines and interprets that term.”
United States v. Thomas, 838 F.3d 926, 930 (8th Cir. 2016), cert. denied, 137 S. Ct.
840 (2017). James argues that Thomas was wrongly decided. But “[i]t is a cardinal
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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rule in our circuit that one panel is bound by the decision of a prior panel.” Mader
v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (citation omitted). Only
the en banc court can overrule Thomas. We must follow this prior panel decision.
2. James was convicted of the Arkansas offense of conspiracy to deliver a
controlled substance. The career offender guidelines define “controlled substance
offense” to include “the possession of a controlled substance . . . with intent to
manufacture, import, export, distribute, or dispense.” § 4B1.2(b). Application Note
1 to § 4B1.2 provides that controlled substance offense “include[s] the offenses of
aiding and abetting, conspiring, and attempting to commit such offenses.” James
argues that the plain language of § 4B1.2(b) “clearly excludes inchoate offenses”
such as conspiracy and attempt; therefore, we should ignore Application Note 1
because guidelines commentary may interpret, but not add to, the offenses included
in § 4B1.2(b). Our en banc court rejected this contention in United States v.
Mendoza-Figueroa, concluding that the Sentencing Commission has statutory
authority “to include drug conspiracy offenses in the category of offenses that warrant
increased prison terms for career offenders,” and therefore, applying the Supreme
Court’s decision in Stinson v. United States, 508 U.S. 36 (1993), we must give Note
1 authoritative weight. 65 F.3d 691, 692 (8th Cir. 1995) (en banc), cert. denied, 516
U.S. 1125 (1996).
Though Mendoza-Figueroa was decided in 1995, we have since followed it
through the many twists and turns of career offender decision-making. See United
States v. Williams, 926 F.3d 966, 971 (8th Cir. 2019); United States v. Bailey, 677
F.3d 816, 818 (8th Cir.), cert. denied, 568 U.S. 864 (2012). Other circuits have
agreed and have applied Note 1 to prior aiding and abetting and attempt offenses as
well as to conspiracy offenses. See United States v. Lange, 862 F.3d 1290, 1294-96
(11th Cir.), cert. denied, 138 S. Ct. 488 (2017); United States v. Nieves-Borrero, 856
F.3d 5, 9 (1st Cir. 2017); United States v. Chavez, 660 F.3d 1215, 1226-28 (10th Cir.
2011). James correctly notes that there is contrary circuit authority. See United
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States v. Winstead 890 F.3d 1082, 1090-92 (D.C. Cir. 2018); United States v. Havis,
927 F.3d 382, 386-87 (6th Cir. 2019) (en banc); cf. United States v. Rollins, 836 F.3d
737, 742 (7th Cir. 2016) (en banc). However, we are bound by our prior en banc
decision in Mendoza-Figueroa and therefore agree with the district court that James
was convicted of a controlled substance offense.
The judgment of the district court is affirmed.
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