United States v. William Kimmons, Howard Small

1 F.3d 1144

UNITED STATES of America, Plaintiff-Appellee,
v.
William KIMMONS, Howard Small, Defendants-Appellants.

No. 90-5413.

United States Court of Appeals,
Eleventh Circuit.

Aug. 26, 1993.

Theodore J. Sakowitz, Federal Public Defender, Gregory A. Prebish, Alison Marie Igoe, Asst. Federal Public Defenders, Miami, FL, for Small.

Frank H. Tamen, Lynne W. Lamprecht, Linda C. Hertz, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before FAY, Circuit Judge, DYER and CLARK, Senior Circuit Judges.

BY THE COURT:

1

Defendants William Kimmons, Howard Small, and Bruce Lee Berta were convicted of conspiracy to rob armored car companies and related firearms offenses. In United States v. Kimmons, 965 F.2d 1001 (11th Cir.1992), we affirmed defendants' convictions and sentences. Defendant Howard Small filed a petition for writ of certiorari. The Supreme Court granted certiorari, vacated our judgment, and remanded the case for further consideration in light of Stinson v. United States, 508 U.S. ----, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Small v. United States, --- U.S. ----, 113 S.Ct. 2326, 124 L.Ed.2d 239 (1993).

2

At issue in Stinson was the definition of "crime of violence" as that term is used in the sentencing guidelines career offender provision, U.S.S.G. Sec. 4B1.1. The commentary to the guidelines provides that "[t]he term 'crime of violence' does not include the offense of unlawful possession of a firearm by a felon." U.S.S.G. Sec. 4B1.2, comment. (n. 2). The Court of Appeals had held that this commentary, though "persuasive," was not "binding" on the federal courts. 957 F.2d 813, 815 (11th Cir.1992). The Supreme Court disagreed, holding that "commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." 508 U.S. at ----, 113 S.Ct. at 1915. The Supreme Court concluded that the commentary at issue was a binding interpretation of the phrase "crime of violence" as used in Sec. 4B1.1.

3

In his petition for writ of certiorari filed with the Supreme Court, defendant Howard Small raised, as Issue II, the application of the career offender provision, Sec. 4B1.1, in his case. Specifically, he argued that this court "erroneously held that possession of a weapon by a convicted felon is a crime of violence for purposes of sentencing under section 4B1.1 of the Sentencing Guidelines." Petition for Writ of Certiorari at 11. This court did not render any such holding. Small raised the Sec. 4B1.1 issue in this court for the first time in his reply brief; Small's initial appellate brief filed with this court does not even mention Sec. 4B1.1. Because arguments raised for the first time in a reply brief are not properly before the reviewing court, United States v. Benz, 740 F.2d 903, 916 (11th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985), we did not address the Sec. 4B1.1 issue in our opinion. In any event, the issue is without merit. The "crime of violence" upon which Small's career offender treatment is based is his conviction of conspiracy to rob armored car companies, not his conviction of firearms possession. Accordingly, the commentary at issue in Stinson has no relevance to Small's case.

4

We have carefully reviewed our decision in United States v. Kimmons, 965 F.2d 1001. We conclude that the decision is consistent with Stinson, as we treated as authoritative any commentary relevant to the sentencing issues raised by defendants. Accordingly, having considered our decision in light of Stinson, we conclude that neither our decision nor our opinion, 965 F.2d 1001, is affected by Stinson. See United States v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1562 (11th Cir.1992); Jones v. American Broadcasting Companies, Inc., 961 F.2d 1546 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 971, 122 L.Ed.2d 126 (1993). We reinstate our judgment affirming defendants' convictions and sentences.