United States v. John Albert Pearson

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10755
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-00039-MW-CAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ALBERT PEARSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 22, 2016)
Before TJOFLAT, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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John Albert Pearson appeals his 240-month sentence following his guilty
plea to possession of cocaine and cocaine base with intent to distribute, being a
felon in possession of a firearm, and possession of a firearm in furtherance of a
drug-trafficking crime. We affirm.
I. BACKGROUND
Information from a Leon County Sheriff’s Office cooperating source (“CS”)
implicated Pearson in trafficking of powder and crack cocaine. In June and July of
2015, the CS made five controlled purchases of crack cocaine from Pearson.
Surveillance conducted contemporaneous to the controlled purchases identified
locations believed to be houses used by Pearson to store controlled substances or
drug proceeds.
Federal search warrants were obtained for two locations in Tallahassee; on
September 3, 2015, investigators executed the warrants. Pearson was observed
outside the master bedroom and was taken into custody. Investigators located
approximately 15.8 grams of powder cocaine hidden inside a shoe on the top shelf
of the master bedroom closet and approximately 13 grams of crack cocaine inside a
shoebox. Adjacent to the cocaine, they found a 9-mm handgun with a loaded
magazine. The investigators also discovered stacks of thousands of dollars in a
three-drawer cabinet next to the bed. Cookware used to convert powder into crack
cocaine, digital scales, a small quantity of marijuana, and other drug paraphernalia
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also were found. Following his arrest, Pearson admitted the cocaine and cookware
were his but disavowed knowledge or possession of the firearm.
A grand jury charged Pearson with one count of possession with intent to
distribute cocaine and cocaine base, in violation 21 U.S.C. § 841(a)(1), (b)(1)(C)
(Count 1), one count of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g) and 924(e) (Count 2), and one count of possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(Count 3). Pursuant to a plea agreement, Pearson pled guilty to all three charges.
In preparing the presentence investigation report (“PSI”), the probation
officer initially calculated a base-offense level of 24 for Counts 1 and 2, pursuant
to U.S.S.G. § 2K2.1(a)(2), because Pearson committed the crime with at least two
prior felony convictions involving violence or a controlled substance. The
probation officer noted Pearson’s 2002, 2003, and 2010 Florida convictions for
possession of cocaine with intent to sell or deliver, and his 2013 Louisiana
conviction for possession with intent to distribute cocaine. Based on those four
prior convictions, the probation officer concluded Pearson was an armed-career
criminal under 18 U.S.C. § 924(e). Under U.S.S.G. § 4B1.4, Pearson’s offense
level was raised to 34. The probation officer also determined Pearson was a career
offender under § 4B1.1 of the Sentencing Guidelines, which would have resulted
in an offense level of 32 but noted that level was not used, because the offense
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level under § 4B1.4 for armed-career criminal was higher. After a three-level
reduction for acceptance of responsibility, Pearson’s offense level was 31.
Based on his criminal history, Pearson had a criminal-history category of VI.
With an offense level of 31 and criminal-history category of VI, Pearson’s
Sentencing Guidelines range for Counts 1 and 2 was 188 to 235 months of
imprisonment. Count 3 required a mandatory, consecutive sentence of 60 months
of imprisonment. Pearson’s Sentencing Guidelines range for all three Counts was
248 to 295 months of imprisonment. Under U.S.S.G. § 4B1.1(c)(3), the probation
officer determined Pearson’s Sentencing Guidelines range became 262 to 327
months of imprisonment.
Pearson objected to his classification as a career offender and armed-career
criminal, based on his prior drug convictions under Florida Statutes § 893.13, as
modified by Florida Statutes § 893.101. He contended the definitions of “serious
drug offense” in the Armed Career Criminals Act (“ACCA”) and “controlled
substance offense” in § 4B1.2(b) were never intended to include state-drug crimes,
such as those defined in § 893.13 lacking a mens rea element regarding the illicit
nature of the substance. Pearson acknowledged we rejected this argument in
United States v. Travis Smith (“Travis Smith”), 775 F.3d 1262 (11th Cir. 2014),
but asserted that case was decided wrongly. Given our holding in Travis Smith, he
alternatively argued, the Sentencing Commission intended such Florida
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convictions to qualify as predicates, and the Commission had exceeded its
statutory authority in defining the term “controlled substance offense” to include
state crimes that lack a mens rea element, because the analogous federal crimes
contain a mens rea element.
At sentencing, Pearson reiterated those arguments but acknowledged they
were foreclosed by Travis Smith. The district judge overruled Pearson’s objection,
concluded he qualified for the ACCA enhancement, and adopted the PSI
Guidelines calculations. The district judge imposed a sentence of 240 months of
imprisonment, comprised of the mandatory-minimum term of 180 months under
the ACCA for Count 2, with a concurrent term of 180 months for Count 1, and the
mandatory-minimum term of 60 months under 18 U.S.C. § 924(c) for Count 3, to
be served consecutively to the sentences for Counts 1 and 2.
On appeal, Pearson argues the district judge erred in concluding his
convictions under Florida Statutes § 893.13 were ACCA and career-offender-
predicate crimes. He acknowledges our holding to the contrary in Travis Smith,
but maintains Travis Smith was decided wrongly. Pearson also argues the
Sentencing Commission exceeded its authority by defining the term “controlled
substance offense” to include crimes lacking a mens rea element, such as those
under § 893.13. He asserts the Commission’s authority to establish guidelines for
career criminals derives from 28 U.S.C. § 994(h), which provides controlled-
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substance crimes are those “described in” 21 U.S.C. § 841. He contends the
Commission has authority under § 994(h) to include state-law crimes as controlled-
substance crimes under the Sentencing Guidelines, only if they include a mens rea
element.
II. DISCUSSION
We review de novo questions of statutory interpretation. United States v.
Castro, 455 F.3d 1249, 1251 (11th Cir. 2006). Whether a prior conviction
qualifies as a “serious drug offense” under the ACCA or a “controlled substance
offense” under the career-offender guideline also is reviewed de novo. See United
States v. Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010) (career offender); United
States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009) (ACCA). We will not
reverse harmless errors. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005);
see also Fed. R. Crim. P. 52(a). An error is harmless, if it does not affect the
defendant’s substantial rights. See Paz, 405 F.3d at 948; Fed. R. Crim. P. 52(a).
The government bears the burden of showing any error was harmless. Paz, 405
F.3d at 948.
A defendant is an armed-career criminal under 18 U.S.C. § 924(e), if he has
three prior convictions for a violent felony or “serious drug offense.” 18 U.S.C.
§ 924(e)(1). The term “serious drug offense” is defined as “an offense under State
law, involving manufacturing, distributing, or possessing with intent to
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manufacture or distribute, a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. [§] 802)), for which a maximum term of
imprisonment of ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii).
A defendant is classified as a career offender under the Sentencing
Guidelines if (1) he was at least 18 years old at the time of the crime of conviction;
(2) which was either a crime of violence or involved a controlled substance; and
(3) he had at least two prior felony convictions of either a crime of violence or a
controlled-substance crime. U.S.S.G. § 4B1.1(a). The Guidelines define
“controlled substance offense” as any crime under federal or state law, punishable
by imprisonment for more than one year, “that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G.
§ 4B1.2(b).
Under Florida law, “a person may not sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance.” Fla.
Stat. § 893.13(1)(a). If the controlled substance involved in the crime is cocaine, it
is a second-degree felony, punishable by up to 15 years of imprisonment. See Fla.
Stat. §§ 893.13(1)(a), 893.03(2)(a), 775.082(3)(d). “[K]knowledge of the illicit
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nature of a controlled substance is not an element of any offense under [§ 893.13].”
Fla. Stat. § 893.101(2).
In Travis Smith, we held crimes under Florida Statute § 893.13(1) qualify as
“serious drug offenses” within the meaning of the ACCA. Travis Smith, 775 F.3d
at 1266-68. Even though the Florida statute lacks a mens rea element concerning
knowledge of the illicit nature of the substance, we recognized the plain language
of 18 U.S.C. § 924(e)(2)(A)(ii) did not expressly or impliedly require a mens rea
element. Id. We also held a prior conviction under § 893.13(1) qualifies as a
“controlled substance offense” for purposes of the career-offender guideline,
because the plain language of § 4B1.2(b) of the career-offender guideline was
unambiguous, and “[n]o element of mens rea with respect to the illicit nature of the
controlled substance is expressed or implied” in the Guidelines definition of
“controlled substance offense.” Id. at 1267.
Our decision in Travis Smith forecloses Pearson’s argument his prior
convictions under § 893.13 do not qualify as ACCA or career-offender predicate
crimes. See id. at 1266-68. Pearson’s contention we should not apply Travis Smith
in his case, because it was decided wrongly, is unavailing. The holding in Travis
Smith remains binding unless and until it is overruled or abrogated by this court
sitting en banc or by the Supreme Court. See United States v. Archer, 531 F.3d
1347, 1352 (11th Cir. 2008) (recognizing a prior panel decision is binding on all
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subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc). Accordingly,
the district judge did not err in concluding Pearson’s Florida convictions were
ACCA and career-offender-predicate crimes.
Pearson also argues the Sentencing Commission exceeded its authority in
defining the term “controlled substance offense” in the Sentencing Guidelines.
The duties of the Sentencing Commission are set forth in 28 U.S.C. § 994. Section
994(a) grants the Commission the authority to promulgate Sentencing Guidelines
for use in determining criminal sentences, as well as general policy statements
regarding the application of those Guidelines. 28 U.S.C. § 994(a). Section 994(h)
mandates the Commission “shall assure” defendants classified as career offenders
receive a sentence of imprisonment “at or near the maximum term authorized,” for
certain predicate crimes. See id. § 994(h). A predicate-controlled-substance crime
is “an offense described in section 401 of the Controlled Substances Act (21
U.S.C. [§] 841), sections 1002(a), 1005, and 1009 of the Controlled Substances
Import and Export Act (21 U.S.C. [§§] 952(a), 955, and 959), and chapter 705 of
title 46.” Id. § 994(h)(2)(B).
The career-offender provision of the Sentencing Guidelines implements the
mandate of § 994(h). United States v. Weir, 51 F.3d 1031, 1032 (11th Cir. 1995)
(citing the commentary to U.S.S.G. § 4B1.1). Section 994(h), however, is not the
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sole statutory mandate for the career-offender provision. Id. (“[T]he specific
offenses listed in section 994(h) are not necessarily exhaustive.”). Section 994(a)
provides independent grounds for the career-offender provision. Id. The
“authority granted by § 994(a) is implicit in all the provisions of the guidelines.”
United States v. Fernando Smith (“Fernando Smith”), 54 F.3d 690, 693 (11th Cir.
1995) (holding the Commission was within its authority under § 994(a) to construe
attempts to commit narcotics crimes as “controlled substance offenses” for
purposes of § 4B1.1) (citation and internal quotation marks omitted). The
Commission does not overstep its statutory mandate by defining the term
“controlled substances offense” to include crimes that are not enumerated in
§ 994(h). See Weir, 51 F.3d at 1032 (holding the Commission was within its
authority to classify drug conspiracies as “controlled substance offenses,” even
though they were not enumerated in § 994(h)).
The Sentencing Commission did not exceed its statutory authority by
defining the term “controlled substance offense” in § 4B1.2(b) to include crimes
that lack a mens rea element concerning the illicit nature of the substance, because
§ 994(a) provides an independent basis for the career-offender guidelines. See
Fernando Smith, 54 F.3d at 693; Weir, 51 F.3d at 1032. Even if § 994(h) does not
authorize the inclusion of state-law crimes such as those in § 893.13 as career-
offender predicates, the Commission has the authority to include those crimes
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under § 994(a). See Fernando Smith, 54 F.3d at 693; Weir, 51 F.3d at 1032.
Consequently, the district judge did not err in applying the career-offender
guideline when calculating Pearson’s Sentencing Guidelines imprisonment range.
Furthermore, Pearson’s 240-month imprisonment sentence was based on the
180-month, mandatory-minimum sentence for Count 2 under the ACCA and the
60-month consecutive, mandatory-minimum sentence for Count 3 under 18 U.S.C.
§ 924(c). Any error the district judge made in concluding the Sentencing
Commission acted within its statutory authority in defining “controlled substance
offense” to include crimes such as those under § 893.13 was harmless, because its
correction would not alter Pearson’s sentence. See Paz, 405 F.3d at 948;
Fed. R. Crim. P. 52(a). Even if Pearson’s concurrent 180-month, career-offender
sentence for Count 1 was invalidated, his 240-month sentence would remain intact,
based on the valid statutory sentences imposed on Counts 2 and 3.
AFFIRMED.
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