United States v. Maurice Jefferson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 25, 2012
No. 11-10456
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 8:09-cr-00484-VMC-MAP-4
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MAURICE JEFFERSON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 25, 2012)
Before HULL, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Maurice Jefferson appeals his conviction and 151-month sentence, imposed
after he pled guilty to one count of conspiracy to possess heroin with intent to
distribute, in violation of 21 U.S.C. §§ 846, 841. On appeal, Jefferson argues: (1)
he should be allowed to withdraw his plea, (2) he does not qualify for the career
offender enhancement, and (3) the career offender enhancement’s residual clause
is unconstitutionally vague. After review, we affirm Jefferson’s conviction and
sentence.
I.
Jefferson argues, for the first time on appeal, that the magistrate judge failed
to adequately explain the elements of the underlying offense of possession with
intent to distribute heroin. He claims the magistrate judge’s error goes to one of
the core concerns of Rule 11 and constitutes plain error, such that he should be
allowed to withdraw his plea.
Jefferson fails to demonstrate plain error. No binding precedent establishes
that a magistrate judge’s failure to describe the underlying offense in a conspiracy
charge beyond reading the plea agreement and elements of the offense constitutes
plain error. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.
2003) (stating there can be no plain error where there is no binding precedent in
this Court or the Supreme Court directly resolving the issue). In fact, we have
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previously held that “[i]n a conspiracy, however, neither actual possession nor
actual distribution is a necessary element of the crime.” United States v. Diaz, 190
F.3d 1247, 1253 (11th Cir. 1999).
II.
Jefferson next argues that Fla. Stat. § 843.01 does not constitute a “crime of
violence” for purposes of U.S.S.G. § 4B1.2's residual clause. He concedes United
States v. Nix, 628 F.3d 1341 (11th Cir. 2010), cert. denied,132 S. Ct. 258 (2011),
held that § 843.01 constituted a violent felony under the ACCA’s residual clause,
but contends that Sykes v. United States, __ U.S. __, 131 S. Ct. 2267 (2011), has
abrogated Nix.
In Nix, we held that a defendant’s conviction for a violation of § 843.01
constituted a violent felony under the ACCA’s residual clause. Nix, 628 F.3d at
1342.1 We are bound by our decision in Nix because it has not been overruled or
abrogated by the Supreme Court or by this Court sitting en banc. See United
States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“To constitute an
‘overruling’ for the purposes of this prior panel precedent rule, the Supreme Court
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The definition of a “crime of violence” under § 4B1.2(a) is “virtually identical” to the
definition of a “violent felony” in the ACCA, and we apply a similar analysis in deciding whether
a given offense qualifies as a crime of violence or a violent felony. United States v. Alexander, 609
F.3d 1250, 1253 (11th Cir. 2010), cert. denied, 131 S.Ct. 1783 (2011).
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decision ‘must be clearly on point.’”). Further, though Jefferson advances
arguments as to why Sykes abrogates Nix, Sykes is not clearly on point and does
not directly overrule or abrogate Nix. See Sykes, 131 S. Ct. at 2270-77 (holding
that an Indiana offense of felony vehicle flight constituted a violent felony for the
purposes of the ACCA).
III.
Jefferson argues, for the first time on appeal, that the residual clause of
U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague, relying on Justice Scalia’s
dissenting opinion in Sykes. However, Jefferson does not offer any controlling
case in this Court or the Supreme Court which establishes that the residual clause
of § 4B1.2(a)(2) is void for vagueness. As a result, Jefferson fails to show that
application of the residual clause was plain error. See Lejarde-Rada, 319 F.3d at
1291.
AFFIRMED.
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