United States v. Andrew Williams

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11556
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20624-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW WILLIAMS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 27, 2015)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Andrew Williams appeals his sentence of 180 months of imprisonment for
possession of a firearm and ammunition by a convicted felon. On appeal, Williams
contends that the court unlawfully enhanced his sentence by ruling that his prior
state drug convictions under Fla. Stat. § 893.13(1) were “serious drug offense[s],”
18 U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],” United States
Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.2(b). Because this Court
recently held in United States v. Smith, __ F. 3d __, No. 13-15227, 2014 WL
7250963, at *5 (11th Cir. Dec. 22, 2014), that “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),” we affirm.
I.
A federal grand jury indicted Williams on one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
Williams pled guilty without the benefit of a written plea agreement.
The presentence investigation report (“PSR”) describes three prior Florida
state-court convictions for “possession with intent to sell, manufacture or deliver
cocaine” and one Florida state-court conviction for resisting an officer with
violence. Based on these prior convictions, the probation officer initially assigned
Williams a base offense level of 24, pursuant to U.S.S.G. §§ 2K2.1(a)(2) and
4B1.2(b), because Williams committed the instant offense after sustaining at least
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two felony convictions of either a crime of violence or a controlled substance
offense. But since Williams also qualified as an “armed career criminal” under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on these same
convictions, the PSR instead applied a base offense level of 33 under U.S.S.G.
§ 4B1.4(b)(3)(B).
Williams’s resulting advisory guideline range was 188 to 235 months of
imprisonment, and as an “armed career criminal” he was subject to a mandatory
minimum sentence of 15 years of imprisonment. See 18 U.S.C. § 924(e)(1).
Williams objected to the enhancements based on his prior convictions, contending
that the Florida drug convictions under Fla. Stat. § 893.13(1) were not qualifying
predicate offenses under either the ACCA or the Sentencing Guidelines because
the offenses did not require proof of a mens rea as to the illicit nature of the
controlled substance.
At sentencing, the district court overruled Williams’s objections and
imposed a sentence of 180 months of imprisonment, noting that the length of the
sentence was “outrageous” but was what the law required. The court stated that it
would have imposed a 71-month sentence in the absence of the statutory minimum.
This appeal followed.
II.
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“We review de novo whether a prior conviction is a serious drug offense
within the meaning of the ACCA.” United States v. Robinson, 583 F.3d 1292,
1294 (11th Cir. 2009). Likewise, we review de novo whether a prior conviction is
a “controlled substance offense” under § 4B1.2(b). United States v. Frazier, 89
F.3d 1501, 1505 (11th Cir. 1996).
III.
Under the ACCA, an individual convicted under 18 U.S.C. § 922(g) is
subject to a mandatory minimum 15-year sentence if he has three previous federal
or state convictions “for a violent felony or a serious drug offense.” 18 U.S.C.
§ 924(e)(1). The ACCA defines “serious drug offense,” in pertinent part, as “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).
Under § 2K2.1(a)(2) of the Sentencing Guidelines, a higher base offense
level applies “if the defendant committed any part of the instant offense subsequent
to sustaining at least two felony convictions of either a crime of violence or a
controlled substance offense.” The Guidelines define “controlled substance
offense,” in turn, as “an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits the manufacture,
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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).
Florida law provides that it is a crime to “sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance.” Fla.
Stat. § 893.13(1)(a). Where the offense involves cocaine, it is a second-degree
felony carrying a 15-year maximum term of imprisonment. Id. §§ 893.13(1)(a)(1),
893.03(2)(a)(4), 775.082(3)(d). In 2002, the Florida legislature amended
§ 893.13(1)(a) by eliminating knowledge of the illicit nature of a substance as an
element of controlled substance offenses. Id. § 893.101(1)-(2); see State v. Adkins,
96 So. 3d 412, 415-16, 423 (Fla. 2012) (upholding the constitutionality of the law).
Lack of knowledge is now an affirmative defense. Fla. Stat. § 893.101(2).
Williams argues that his prior cocaine convictions under Fla. Stat.
§ 893.13(1) were not “serious drug offense[s]” or “controlled substance offense[s]”
because § 893.13 does not require proof of the defendant’s knowledge of the illicit
nature of the substance. Relying primarily on our opinions in Donawa v. U.S.
Attorney General, 735 F.3d 1275 (11th Cir. 2013), and Young v. United States, 936
F.2d 533 (11th Cir. 1991), he argues that mens rea is an implied, essential element
of any qualifying crime under the ACCA or the Sentencing Guidelines. He further
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contends that the rule of lenity1 and the presumption in favor of mental culpability
require that these provisions be construed in his favor.
In Donawa, we held that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla.
Stat. § 893.101, was not a “drug trafficking crime,” as defined 18 U.S.C.
§ 924(c)(2), and therefore was not a “drug trafficking aggravated felony” for
purposes of 8 U.S.C. §§ 1227(a) and 1101(a)(43)(B). 735 F.3d at 1279-82. Using
the categorical approach, pursuant to which we look “only to the fact of conviction
and the statutory definition of the offense,” we asked whether “the state statute
defining the crime of conviction categorically fits within the generic federal
definition of a corresponding aggravated felony.” Id. at 1280 (quoting Moncrieffe
v. Holder,__ U.S. __, __, 133 S. Ct. 1678, 1684 (2013) (quotation marks omitted)).
Because the federal analogue, 21 U.S.C. § 841(a)(1) 2, to the Florida controlled
substance offense “requires the government to establish, beyond a reasonable
doubt and without exception, that the defendant had knowledge of the nature of the
substance in his possession,” but Fla. Stat. § 893.13(1)(a)(2) does not, we held
“that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, does not
1
“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the
defendants subjected to them.” United States v. Santos, 553 U.S. 507, 514, 128 S. Ct. 2020,
2025 (2008).
2
Section 924(c)(2) defines the term “drug trafficking crime” in reference to federal
controlled substances provisions, including 21 U.S.C. § 841. See 18 U.S.C. § 924(c)(2).
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qualify as a drug trafficking aggravated felony under the categorical approach.”
Id. at 1281-83.
Similarly, in Young, we held that state crimes were “controlled substance
offense[s]” only if they were “substantially similar” to federal drug trafficking
crimes. 936 F.2d at 536-38. For purposes of our decision in Young, the Guidelines
defined a “controlled substance offense” as “an offense identified in 21 U.S.C. §§
841, 845b, 856, 952(a), 955, 955a, 959, and similar offenses.” Id. at 536; see
U.S.S.G. § 4B1.2(2) (Nov. 1988). That definition was amended in 1989. See
Young, 936 F.2d at 536 n.3.
After this appeal was fully briefed, this Court decided Smith, resolving the
two issues currently before us. Specifically, we addressed whether the definitions
of “serious drug offense” under 18 U.S.C. § 924(e)(2)(A) and “controlled
substance offense” under U.S.S.G. § 4B1.2(b) include “crimes that do not require
an element of mens rea regarding the illicit nature of the controlled substance.”
Smith, 2014 WL 7250963, at *1. After considering and rejecting the same
arguments raised in this appeal, we held that “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).” Id. at *3-5.
In reaching that holding, we explained that the defendants’ reliance on
Donawa was unavailing, stating, “We need not search for the elements of ‘generic’
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definitions of ‘serious drug offense’ and ‘controlled substance offense’ because
these terms are defined by a federal statute and the Sentencing Guidelines,
respectively.” Id. at *4. Looking to the plain language of the definitions in 18
U.S.C. § 924(e)(2)(A) and U.S.S.G. § 4B1.2(b)(2), we concluded that neither
definition expressed or implied an “element of mens rea with respect to the illicit
nature of the controlled substance.” Id. And “we presume that Congress and the
Sentencing Commission said what they meant and meant what they said.” Id.
(internal quotation marks and brackets omitted).
Finding the relevant definitions “unambiguous,” we also rejected the
defendants’ arguments based on the presumption in favor of mental culpability and
the rule of lenity. Id. Furthermore, we explained that our holding in Young did not
control because “the definition of ‘controlled substance offense’ that we
interpreted in Young is distinct from the definition at issue in this appeal.” Id.
Compare U.S.S.G. § 4B1.2(2) (Nov. 1988), with U.S.S.G. § 4B1.2(b) (Nov. 2013).
In view of this Court’s decision in Smith, the district court correctly
concluded that Williams’s prior convictions under Fla. Stat. § 893.13(1) qualified
as both “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A), and “controlled
substance offense[s],” U.S.S.G. § 4B1.2(b). Therefore, we affirm Williams’s
sentence.
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AFFIRMED. 3
3
Williams’s “Motion to File Reply Brief Out of Time” is GRANTED.
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