United States v. Travis Lamont Smith ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15227
________________________
D.C. Docket No. 1:13-cr-20314-DLG-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
TRAVIS LAMONT SMITH,
Defendant–Appellant.
________________________
Nos. 13-15133; 14-10075
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D.C. Docket No. 9:13-cr-80117-KAM-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JOSE G. NUNEZ,
a.k.a. Gordo,
Defendant–Appellant.
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________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(December 22, 2014)
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and WALTER, ∗ District
Judge.
WILLIAM PRYOR, Circuit Judge:
These consolidated appeals require us to decide whether the definitions of
“serious drug offense” under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(A), and “controlled substance offense” under the Sentencing
Guidelines, U.S.S.G. § 4B1.2(b) (Nov. 2013), include crimes that do not require an
element of mens rea regarding the illicit nature of the controlled substance. Both
Travis Lamont Smith and Jose G. Nunez have prior convictions for Florida drug
crimes that have no element of mens rea with respect to the illicit nature of the
drug. In separate proceedings, Smith and Nunez pleaded guilty to federal felony
offenses and received enhanced sentences when the district courts ruled that their
prior convictions were, respectively, “serious drug offense[s],” 18 U.S.C.
§ 924(e)(2)(A), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b).
Because drug crimes without an element of mens rea can be “serious drug
∗
Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
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offense[s],” 18 U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],”
U.S.S.G. § 4B1.2(b), we affirm Smith’s and Nunez’s sentences.
I. BACKGROUND
We divide the background in two parts. First, we discuss Smith’s conviction
and sentencing. Second, we discuss Nunez’s conviction and sentencing.
A. Smith Is Convicted of Possession of a Firearm by a Convicted Felon and
Sentenced as an “Armed Career Criminal.”
A grand jury indicted Smith on one count of possession of a firearm by a
convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1). Smith later pleaded guilty to
that charge, and he signed a factual proffer that he “ha[d] been convicted of [four]
prior felony narcotics violations.”
The presentence investigation report calculated Smith’s guideline range as
151 to 188 months of imprisonment, U.S.S.G. ch. 5, pt. A, Sentencing Table, but
as an “armed career criminal,” id. § 4B1.4(a), Smith faced a mandatory minimum
sentence of 180 months of imprisonment under the Armed Career Criminal Act of
1984, 18 U.S.C. § 924(e). The district court ruled that Smith’s prior convictions for
possession of marijuana with intent to sell within 1,000 feet of a school or church,
Fla. Stat. § 893.13(1)(c)(2); sale of cocaine with intent to distribute, id.§ 893.13(1)(a)(1); and possession of cocaine with intent to distribute, id., were
“serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A)(ii), that qualified Smith as an
“armed career criminal,” U.S.S.G. § 4B1.4(a).
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Smith objected to the sentencing enhancement on the ground that it violated
his rights under the Fifth and Sixth Amendments. He argued that the Fifth
Amendment required that his prior convictions be alleged in his indictment and
that the Sixth Amendment required either proof to a jury beyond a reasonable
doubt or his admission that his prior convictions were “serious drug offense[s],” 18
U.S.C. § 924(e)(2)(A)(ii). The district court overruled Smith’s objections and
sentenced him to 180 months of imprisonment. After he filed a notice of appeal,
Smith filed a motion to reconsider on the ground that his prior convictions did not
qualify as serious drug offenses. The district court denied his motion.
B. Nunez Is Convicted of Possession of a Firearm by a Convicted Felon and
Sentenced as a “Career Offender.”
A grand jury indicted Nunez on one count of possession of a firearm by a
convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2); six counts of possession with
intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1); and one count of
possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A). Nunez pleaded guilty to one count of each of the charged crimes.
The presentence investigation report calculated Nunez’s guideline range as
77 to 96 months of imprisonment, U.S.S.G. ch. 5, pt. A, Sentencing Table, but as a
“career offender,” id. § 4B1.1(a), his guideline range was increased to 262 to 327
months of imprisonment, id. § 4B1.1(c)(3). The district court ruled that Nunez’s
prior state convictions for possession of marijuana with intent to sell, Fla. Stat.
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§ 893.13(1)(a)(2), and possession of cocaine with intent to sell, id., were
“controlled substance offense[s],” U.S.S.G. § 4B1.2(b), that qualified Nunez as a
“career offender,” id. § 4B1.1(a). The district court varied downward from the
advisory guideline range and sentenced Nunez to 228 months of imprisonment.
After Nunez filed a notice of appeal, he moved the district court to reconsider his
sentence on the ground that his prior convictions were not “controlled substance
offense[s],” id. § 4B1.2(b). The district court denied his motion.
II. STANDARD OF REVIEW
“We review [de novo] constitutional sentencing issues . . . .” United States v.
Steed, 548 F.3d 961, 978 (11th Cir. 2008).
III. DISCUSSION
The parties present two issues. First, Smith argues that the government
violated his rights under the Fifth and Sixth Amendments because his prior
convictions were not alleged in his indictment or specifically admitted by him.
Second, Smith and Nunez argue that their prior convictions for Florida drug crimes
do not qualify as “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A)(ii), and
“controlled substance offense[s],” U.S.S.G. § 4B1.2(b). We address each argument
in turn.
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A. The District Court Correctly Relied on Smith’s Prior Convictions.
Smith argues that the application of the mandatory minimum sentence, 18
U.S.C. § 924(e), violated his Fifth and Sixth Amendment rights. Smith argues that
his prior convictions cannot be used to increase his maximum possible sentence or
mandatory minimum sentence because his prior convictions were not alleged by
indictment, U.S. Const. Amend. V, and he did not specifically admit that his prior
convictions were serious drug offenses, U.S. Const. Amend. VI. Smith argues that
the Supreme Court ruled in Alleyne v. United States that all facts that trigger
mandatory minimum sentences—including the fact of a prior conviction—must be
alleged in an indictment, submitted to a jury, and proved beyond a reasonable
doubt. U.S. , 133 S. Ct. 2151, 2155 (2013).
Smith’s arguments fail. “[N]either the Fifth Amendment nor the Sixth
Amendment prevent[s] the district court from finding the fact of [Smith]’s prior
convictions, or using them to designate him a[n Armed Career Criminal].” United
States v. Gibson, 434 F.3d 1234, 1246 (11th Cir. 2006). Although it is ordinarily
true that all elements of a crime must be alleged by indictment and either proved
beyond a reasonable doubt or admitted by a defendant, there is an exception for
prior convictions. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.
Ct. 1219, 1232–33 (1998). The Constitution does not require that “[t]he
government . . . allege in its indictment and . . . prove beyond a reasonable doubt
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that [Smith] had prior convictions for a district court to use those convictions for
purposes of enhancing a sentence.” Gibson, 434 F.3d at 1246 (internal quotation
marks and citation omitted).
Alleyne did not overrule Almendarez-Torres, and the Fifth and Sixth
Amendments do not limit the use of Smith’s prior convictions. United States v.
Harris, 741 F.3d 1245, 1250 (11th Cir. 2014). We acknowledged in Harris that
there is “some tension” between Almendarez-Torres and Alleyne, but “we are
bound to follow Almendarez-Torres unless and until the Supreme Court itself
overrules that decision.” Id. (internal quotation marks and citation omitted). The
district court correctly used Smith’s prior convictions to designate him an “armed
career criminal.” Id.B. Smith’s Prior Convictions Are “Serious Drug Offenses,” and Nunez’s Prior
Convictions Are “Controlled Substance Offenses.”
As an initial matter, the parties disagree about whether an argument raised
for the first time in a motion to reconsider a sentence is preserved for our review.
The government argues that Smith and Nunez first raised their argument that their
prior convictions were not “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A), and
“controlled substance offense[s],” U.S.S.G. § 4B1.2(b), in their motions to
reconsider their sentences. The government argues that, because Smith and Nunez
filed notices of appeal before they filed motions to reconsider their sentences, the
district courts did not have jurisdiction to grant the motions, and we should review
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their sentences for plain error. Smith argues that he first raised this issue at his
sentencing, and Smith and Nunez argue that, in any event, their motions to
reconsider their sentences preserved their objections and our review should be de
novo. Because we conclude that the district courts committed no error, we need not
decide which standard of review governs this issue.
Smith and Nunez argue that their prior convictions for violations of section
893.13(1) of the Florida Statutes do not qualify as “serious drug offense[s],” 18
U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b).
Smith and Nunez rely on our decision in Donawa v. United States Attorney
General, where we were asked to decide whether section 893.13(1)(a)(2) was a
“drug trafficking aggravated felony” under the Immigration and Nationality Act of
1965, 8 U.S.C. § 1227(a). 735 F.3d 1275, 1278 (11th Cir. 2013). The Act provided
that “drug trafficking crime[s]” were “aggravated felon[ies],” 8 U.S.C.
§ 1101(a)(43)(B), and the Act broadly defined “drug trafficking crime” as “any
felony punishable under the Controlled Substances Act[,] 21 U.S.C. [§] 801 et
seq.[,] the Controlled Substances Import and Export Act[,] 21 U.S.C. [§] 951 et
seq.[,] or chapter 705 of title 46,” 18 U.S.C. § 924(c). We ruled that the “federal
analogue,” 21 U.S.C. § 841(a)(1), to the Florida statute, Fla. Stat.
§ 893.13(1)(a)(2), supplied the elements of the “generic federal definition” of
“drug trafficking crime.” Donawa, 735 F.3d at 1280–81 (internal quotation marks
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and citation omitted). We held that the Florida statute was not a “drug trafficking
aggravated felony” because the federal analogue included an element of mens rea
with respect to the illicit nature of the controlled substance and the Florida statute
did not. Id. at 1281. Smith and Nunez argue that the “generic” federal definitions
of “serious drug offense” and “controlled substance offense” include that same
element of mens rea required by the definition of “drug trafficking aggravated
felony.”
Smith’s and Nunez’s arguments fail. We need not search for the elements of
“generic” definitions of “serious drug offense” and “controlled substance offense”
because these terms are defined by a federal statute and the Sentencing Guidelines,
respectively. A “serious drug offense” is “an offense under State law,” punishable
by at least ten years of imprisonment, “involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance.” 18
U.S.C. § 924(e)(2)(A)(ii). And a “controlled substance offense” is any offense
under state law, punishable by more than one year of imprisonment, “that prohibits
the manufacture, import, export, distribution, or dispensing of a controlled
substance . . . or the possession of a controlled substance . . . with intent to
manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).
No element of mens rea with respect to the illicit nature of the controlled
substance is expressed or implied by either definition. We look to the plain
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language of the definitions to determine their elements, United States v. Duran,
596 F.3d 1283, 1291 (11th Cir. 2010), and we presume that Congress and the
Sentencing Commission “said what [they] meant and meant what [they] said,”
United States v. Strickland, 261 F.3d 1271, 1274 (11th Cir. 2001) (internal
quotation marks and citation omitted); see also United States v. Shannon, 631 F.3d
1187, 1190 (11th Cir. 2011). The definitions require only that the predicate offense
“involv[es],” 18 U.S.C. § 924(e)(2)(A)(ii), and “prohibit[s],” U.S.S.G. § 4B1.2(b),
certain activities related to controlled substances.
Smith and Nunez argue that the presumption in favor of mental culpability
and the rule of lenity, Staples v. United States, 511 U.S. 600, 606, 619, 114 S. Ct.
1793, 1797, 1804 (1994), require us to imply an element of mens rea in the federal
definitions, but we disagree. The presumption in favor of mental culpability and
the rule of lenity apply to sentencing enhancements only when the text of the
statute or guideline is ambiguous. United States v. Dean, 517 F.3d 1224, 1229
(11th Cir. 2008); United States v. Richardson, 8 F.3d 769, 770 (11th Cir. 1993).
The definitions of “serious drug offense,” 18 U.S.C. § 924(e)(2)(A)(ii), and
“controlled substance offense,” U.S.S.G. § 4B1.2(b), are unambiguous.
Nunez also argues that our precedents require us to hold that section
893.13(1) is not a controlled substance offense, but his argument fails. Nunez
argues that our holding in Young v. United States establishes that state crimes are
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“controlled substance offense[s],” U.S.S.G. § 4B1.2(2) (Nov. 1988), only if they
are “substantially similar” to federal drug trafficking crimes. 936 F.2d 533, 536–37
(11th Cir. 1991). Nunez maintains that, because we held in Donawa that section
893.13(1)(a)(2) is not a “drug trafficking crime,” 735 F.3d at 1281, section
893.13(1) cannot be a controlled substance offense. But Nunez’s reliance on Young
is misplaced because the definition of “controlled substance offense” that we
interpreted in Young is distinct from the definition at issue in this appeal. Compare
U.S.S.G. § 4B1.2(2) (Nov. 1988), with U.S.S.G. § 4B1.2(b) (Nov. 2013). When we
decided Young, “controlled substance offense” was defined as an enumerated list
of federal drug trafficking crimes and “similar offenses.” U.S.S.G. § 4B1.2(2)
(Nov. 1988). But the definition of “controlled substance offense,” in this appeal,
does not reference drug trafficking or a class of “similar offenses.” U.S.S.G.
§ 4B1.2(b) (Nov. 2013).
Section 893.13(1) of the Florida Statutes is both a “serious drug offense,” 18
U.S.C. § 924(e)(2)(A), and a “controlled substance offense,” U.S.S.G. § 4B1.2(b).
Neither definition requires that a predicate state offense includes an element of
mens rea with respect to the illicit nature of the controlled substance. The district
courts correctly sentenced Smith as an “armed career criminal,” U.S.S.G.
§ 4B1.4(a), and Nunez as a “career offender,” id. § 4B1.1(a).
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IV. CONCLUSION
We AFFIRM Smith’s and Nunez’s sentences.
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