United States v. Lenzy Johnson

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11624
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20060-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LENZY JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 29, 2016)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Lenzy Johnson appeals his 180 month sentence, claiming that his
enhancement under the Armed Career Criminal Act (“ACCA”) (18 U.S.C.
§ 924(e)(2)(A)(ii)) was erroneously imposed because his underlying Florida
controlled substance convictions were not “serious drug offenses.”
I.
When appropriate, we will “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). Because Johnson failed to
preserve the issue for appeal, however, we review for plain error. United States
v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). To establish plain error, Johnson
must show that (1) there is an error, (2) that is plain or obvious, (3) affecting his
substantial rights in that it was prejudicial and not harmless, and (4) that
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. See id. Further, the prior precedent rule holds that a prior panel’s
ruling is binding on all subsequent panels unless and until it is overruled by the
Supreme Court or this Court sitting en banc. United States v. Archer, 531 F.3d
1347, 1352 (11th Cir. 2008).
Under § 924(e), if a defendant is convicted of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and he has three previous
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convictions for a violent felony or serious drug offense, the mandatory minimum
prison sentence increases from 10 years to 15 years, or 180 months. 18 U.S.C.
§ 924(e); see id., § 924(a)(2). Under the Guidelines, where the § 924(e) applies
and another computation is not greater, the defendant’s offense level is 33. In
addition, under § 4B1.4(c), a minimum criminal-history category of IV applies.
See id., § 4B1.4(c)(1)-(3).
A “serious drug offense” is
(i) an offense 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, for which a maximum term of
imprisonment of ten years or more is prescribed by law; or
(ii) 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)(i)-(ii) (emphasis added).
Florida law punishes the sale, manufacture, delivery, or possession with
intent to sell, manufacture cocaine as a second degree felony. See Fla. Stat.
§ 893.13(1)(a)(1). Second-degree felonies are punishable by up to 15 years’
imprisonment. Id. § 775.082(3)(d). The sale, manufacture, delivery, or
possession, with intent to sale, of marijuana is a third degree felony.
Id. § 893.13(1)(a)(2). Third-degree felonies are punishable up to five years’
imprisonment. Id. § 775.082(3)(e). However, if a defendant commits qualifying
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underlying convictions, a sentence may be enhanced under the Florida habitual
offender statute. Id. § 775.084. A third degree felony is enhanced to ten years’
imprisonment, and a second degree felony is enhanced to thirty years’
imprisonment. Id. § 775.084(4)(a).
“When determining whether a particular conviction qualifies as a serious
drug offense under § 924(e), [this Court is] generally limited to a formal
categorical approach, which looks ‘only to the fact of conviction and the statutory
definition of the prior offense,’ instead of the actual facts underlying the
defendant’s prior conviction.” Robinson, 583 F.3d at 1295 (quoting Taylor v.
United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160, 109 L. Ed. 2d 607(1990)).
In United States v. Descamps, a defendant challenged his enhancement
under the ACCA, arguing that his prior burglary offense was not a “violent
felony.” 133 S. Ct. 2276, 2295, 186 L. Ed. 2d 438 (2013). The Supreme Court
held that courts may not apply the modified categorical approach to sentencing
under the ACCA when the crime for which the defendant was convicted has a
single, indivisible set of elements. Id. at 2281-82. Therefore, the Supreme Court
found the defendant’s California burglary conviction could not support
enhancement under the ACCA because California’s definition of burglary
punished conduct outside of the generic definition of burglary. Id. at 2293.
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In United States v. Smith, we faced a situation where a defendant argued that
his prior Florida Statute § 893.13 convictions were not “serious drug offenses”
under the ACCA. 775 F.3d 1262, 1266-67 (11th Cir. 2014), cert. denied, 135 S.
Ct. 2827 (2015). In finding that the convictions supported enhancement, we held
that we “need not search for the elements of ‘generic’ definitions of ‘serious drug
offense’” because that term is “defined by a federal statute.” Id. at 1267.
In Mellouli, a defendant argued that his Kansas conviction for drug
paraphernalia was not a qualifying conviction under the deportation statute, 8
U.S.C. § 1227. 135 S. Ct. 1980, 1985, 192 L. Ed. 2d 60 (2015). The Supreme
Court held that the defendant’s prior conviction did not support deportation
because no element of the defendant’s Kansas conviction connected to an element
under 18 U.S.C. § 802. Id. at 1991. Significantly, the Court stated its application
of the categorical approach in this case was reserved only for immigration cases.
Id. at 1986.
Johnson’s claim is foreclosed by the prior precedent rule and Smith. First,
Johnson’s reliance on Descamps is misguided because it was published prior to
Smith and thus Smith is presumed to have followed it. Further, under Smith,
Johnson’s prior § 893.13 convictions fall within the plain meaning of “serious drug
offense” because his convictions were for possessing cocaine and marijuana, for
which the maximum terms of imprisonment exceed 10 years. Johnson’s reliance
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upon is Mellouli is also unwarranted. In that case, the defendant was a lawful
permanent resident who was convicted of possession of drug paraphernalia. Id. at
1983. The case involved another state’s statute (Kansas) being applied to an
immigration statute, not the ACCA. The Mellouli decision is not on point both
because it involves a state statute very different from Florida’s § 893.13(1)(a), and
also because it involves the immigration statute, again very different from the
ACCA. Mellouli neither abrogates our Smith decision nor does it enable Johnson
to surmount the hurdle of plain error review. Accordingly, we affirm.
AFFIRMED.
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