United States v. Stoney Lester

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2005
No. 04-13177 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-00037-CR-WDO-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STONEY LESTER,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 6, 2005)
ON PETITION FOR REHEARING
Before ANDERSON, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
The panel’s opinion in this case issued on April 29, 2005. The mandate was
withheld pursuant to a request by an active judge. Appellant now moves for panel
rehearing. Based on our conclusion we should have also considered Booker
statutory error in the opinion, we GRANT the motion for rehearing and vacate our
previous opinion.
Stoney Lester appeals his sentence for possession with intent to distribute
more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C). He maintains the district court erred in (1) applying the career offender,
obstruction of justice, and dangerous firearm enhancements, in light of Blakely v.
Washington, 124 S. Ct. 2531 (2004), (2) determining marijuana was a controlled
substance for purposes of determining whether Lester was entitled to a career
offender classification, (3) accepting the Pre-Sentence Investigation Report’s
recommendation that Lester receive a two-level enhancement for both obstruction
of justice and possessing a dangerous firearm, (4) not departing downward
because Lester’s career offender enhancement, along with his Criminal History
Category of VI, over-represented the likelihood he would commit future crimes,
and (5) denying Lester’s request for an acceptance of responsibility adjustment.
The district court did not err, and we affirm.
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I. DISCUSSION
A. Blakely/Booker
1. Sixth Amendment
Lester asserts the district court’s application of the career offender,
obstruction of justice, and dangerous firearm enhancements violated his Sixth
Amendment rights under Blakely, because the underlying facts were not submitted
to a jury. Lester raises this issue for the first time on appeal. We review for plain
error those issues in which timely objections were not made in the district court.
United States v. Olano, 113 S. Ct. 1770, 1776 (1993); see also Fed. R. Crim. P.
52(b). To prevail under a plain-error standard, the appellant must meet the
following three requirements: (1) there must be an error; (2) that error must be
plain; and (3) the plain error must affect substantial rights. Olano, 113 S. Ct. at
1776. Once the appellant proves these three elements, we may notice the error
only if it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1779.
a. Career Offender Classification
“In Almendarez-Torres v. United States [118 S. Ct. 1219 (1998)], the
Supreme Court held that the government need not allege in its indictment and need
not prove beyond a reasonable doubt that a defendant had prior convictions for a
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district court to use those convictions for purposes of enhancing a sentence.”
United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied, 125 S.
Ct. 637 (2004). In Apprendi, the Supreme Court declined to revisit
Almendarez-Torres and held “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v.
New Jersey, 120 S. Ct. 2348, 2362–63 (2000).
In Blakely, the Supreme Court applied the rule it announced in Apprendi to
the State of Washington’s Sentencing Reform Act. 124 S. Ct. at 2534–36. The
Supreme Court struck down an upward departure imposed under Washington’s
sentencing system that was based solely on judicial factfinding, clarifying that the
relevant “statutory maximum for Apprendi purposes is the maximum a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant.” Id. at 2534–38 (emphasis omitted).
In United States v. Booker, 125 S. Ct. 738, 756 (2005), the Supreme Court
concluded its holding in Blakely applied to the Federal Sentencing Guidelines and
reaffirmed its holding in Apprendi: “Any fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized by the facts
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established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.”
We recently held that Almendarez-Torres remains the law post-Booker. See
United States v. Camacho-Ibarquen, 404 F.3d 1283, 1290 (11th Cir. 2005).
Accordingly, insofar as the district court’s enhancement of Lester’s sentence under
§ 4B1.1 merely involved a determination Lester had prior convictions, the
enhancement did not implicate Apprendi, Blakely, or Booker, as those cases
exempt prior convictions from the types of facts that must be admitted by the
defendant or proved to a jury beyond a reasonable doubt in order to support a
sentence enhancement.
b. Obstruction of Justice and Dangerous Firearm Enhancements
Lester’s argument that his obstruction of justice and dangerous firearm
enhancements violate his Sixth Amendment rights also fails. As discussed below,
the district court did not err when it determined Lester was entitled to a career
offender classification. Because Lester’s guideline range was determined based
on the career offender classification, and the obstruction of justice and dangerous
firearm enhancements affected neither his statutory maximum as defined in
Booker, nor his sentence, any potential error was harmless. See Booker, 125 S. Ct.
at 769 (stating the harmless error doctrine still applies to sentencing issues).
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2. Statutory Error
The Supreme Court indicated that both its “Sixth Amendment holding and
. . . remedial interpretation of the Sentencing Act” must be applied “to all cases on
direct review.” Booker, 125 S. Ct. at 769. We have clarified there are two types
of Booker error: (1) Sixth Amendment, or constitutional, error based upon
sentencing enhancements neither admitted by the defendant nor submitted to a jury
and proven beyond a reasonable doubt; and (2) statutory error based upon
sentencing under a mandatory Guidelines system. United States v. Shelton, 400
F.3d 1325, 1329–34 (11th Cir. 2005).
Here, there is error that is plain because the district court treated the
Guidelines as mandatory. See Shelton, 400 F.3d at 1331. In applying the third
prong of the plain error test, “we ask whether there is a reasonable probability of a
different result if the guidelines had been applied in an advisory instead of binding
fashion by the sentencing judge in this case.” United States v. Rodriguez, 398
F.3d 1291, 1301 (11th Cir. 2005). “To establish the third prong takes something
more than showing the district court sentenced within the Guidelines range and
felt bound to do so, especially given that the Guidelines range remains an
important factor in sentencing.” Shelton, 400 F.3d at 1332. The fact the district
court sentenced the defendant to the bottom of the applicable Guidelines range
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does not establish a reasonable probability the court would have imposed a lesser
sentence under an advisory regime. United States v. Fields, 11th Cir., 2005, __
F.3d __ (No. 04-12486 at *8–9, May 16, 2005).
At sentencing, the district judge stated he was “sentencing [Lester] as a
career offender because I think I’m required to do so. It’s not a matter of choice.”
Additionally, Lester was sentenced to the lowest possible Guidelines sentence.
However, that the district court sentenced within the Guidelines range and felt
bound to do so, and that Lester was sentenced at the low end of the range is not
enough to establish the third prong. See Shelton, 400 F.3d at 1332, Fields, No. 04-
12486 at *8–9. Thus, Lester has not satisfied the third prong of the plain error test
and cannot show plain error in being sentenced under a mandatory Guidelines
system.
B. Controlled Substance and Career Offender Classification
Lester next argues the district court erred in classifying him as a career
offender because he did not have the requisite prior felony offenses as Georgia law
does not recognize marijuana as a controlled substance. We review de novo the
district court’s interpretation of the Guidelines. United States v. Rubio, 317 F.3d
1240, 1242 (11th Cir. 2003). The Guidelines provide a defendant is a career
offender if: (1) he was at least 18 years old at the time he committed the instant
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offense of conviction; (2) the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense; and (3) he had at least two
prior felony convictions of a crime of violence or controlled substance offense.
U.S.S.G. § 4B1.1. A controlled substance offense is “an offense under federal or
state law, punishable by imprisonment for a term exceeding one year, that
prohibits the manufacture, 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).
In United States v. Simon, the defendant argued he could not be deported
because his Florida state law conviction for possessing cocaine was not a drug
trafficking crime under Florida law. Simon, 168 F.3d 1271, 1272 n.2 (11th Cir.
1999). We rejected his argument stating “trafficking crimes are defined under the
CSA [Controlled Substances Act] and federal, not state, definitions govern under
the Guidelines.” Id.; see also United States v. Tamayo, 80 F.3d 1514, 1523 (11th
Cir. 1996) (the definition of a valid conviction for federal sentencing purposes is
defined by federal, not state law).
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Our reasoning in Simon and Tamayo is dispositive of the current case
because federal law classifies marijuana as a controlled substance.1 We have also
stated conspiracy to possess marijuana with intent to distribute is a controlled
substance offense for purposes of the U.S.S.G. § 4B1.1 career criminal
classification. United States v. Weir, 51 F.3d 1031, 1031 (11th Cir. 1995).
Further, although Georgia law, according to Asberry v. State, 467 S.E.2d 225,
226–227 (Ga. App. 1996), does not consider marijuana a controlled offense,
federal law, and not state law, governs under the federal Sentencing Guidelines.
Simon, 168 F.3d at 1272 n.2; Tamayo, 80 F.3d at 1523. Thus, the district court did
not err when it concluded Lester’s prior conviction for possessing and selling
marijuana was a controlled substance offense for purposes of classifying him as a
career offender.
C. Obstruction of Justice and Dangerous Firearm Enhancements
Lester further maintains the district court erred in applying the dangerous
firearm (U.S.S.G. § 2D1.1(b)(1)) and obstruction of justice enhancements
(U.S.S.G. § 3C1.1). We review for clear error the district court’s findings of fact
when it enhances a defendant’s sentence in obstruction of justice cases and for
1
The United States Code states that a controlled substance is any drug or substance listed in
schedule I, II, III, IV, and V of 21 U.S.C. § 812. 21 U.S.C. § 802(6). Section 812 lists marijuana
as a schedule I drug. 21 U.S.C. § 812, Schedule I (c)(10).
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cases involving U.S.S.G. § 2D1.1(b)(1), and review the application of the
sentencing guidelines de novo. United States v. Uscinski, 369 F.3d 1243, 1246
(11th Cir. 2004) (obstruction cases); United States v. Gallo, 195 F.3d 1278, 1280
(11th Cir. 1999) (§ 2D1.1(b)(1) cases).
The probation department originally assigned Lester a base offense level of
26, and with the additional four levels from the obstruction and dangerous firearm
enhancements, his total offense level was 30. However, because Lester is a career
offender with a statutory maximum of 40 years, his offense level had to be 34,
pursuant to § 4B1.1(B).2 Therefore, if there was any error in applying the
obstruction and dangerous firearm enhancements, it was harmless. See Fed. R.
Crim. P. 52(a) (“Any error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded”).
D. Downward Departure
Lester also contends the district court erred in denying his request for a
downward departure because his career offender enhancement and his criminal
history category of VI overstate his past crimes and the likelihood he will commit
future crimes. He also maintains the district court violated Blakely because it
2
Although the statutory maximum for Lester’s offense is life, Lester was told at his plea
hearing that the statutory maximum was 40 years. Both the district court and the parties relied on
the 40 year maximum to determine the career offender offense level.
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never submitted to a jury the issue of whether he was entitled to a downward
departure. We lack jurisdiction to review a district court’s denial of a downward
departure when the court bases its decision on its discretionary authority. United
States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). We have jurisdiction,
however, to review the defendant’s claim the district court mistakenly lacked
discretionary authority to depart. Id. When nothing in the record indicates
otherwise, we will assume the district court understood it had the authority to
depart downward, thus precluding review. Id.Although the district court did not comment on why it did not grant the
departure, we assume the district court was aware it had the authority to depart and
chose to exercise its discretionary authority to deny the departure. Thus, we lack
jurisdiction to consider Lester’s claim. See id.E. Acceptance of Responsibility
Finally, Lester avers the district court erred in not applying the acceptance
of responsibility adjustment. “We review the district court’s determination of
acceptance of responsibility only for clear error.” United States v. Amedeo, 370
F.3d 1305, 1320 (11th Cir. 2004). Further, we will not set aside a district court’s
determination a defendant is not entitled to a reduction for acceptance of
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responsibility “unless the facts in the record clearly establish that a defendant has
accepted personal responsibility.” Id. at 1320–21.
U.S.S.G. § 3E1.1 allows the district court to decrease the offense level by
two levels “[i]f the defendant clearly demonstrates acceptance of responsibility for
his offense.” The Guidelines state evidence of the defendant’s truthful admission
of his criminal conduct “may be outweighed by conduct of the defendant that is
inconsistent with such acceptance of responsibility. A defendant who enters a
guilty plea is not entitled to an adjustment under this section as a matter of right.”
U.S.S.G. § 3E1.1, comment. (n.3). Moreover, the guidelines also state that, an
enhancement for obstruction of justice (§ 3C1.1) generally indicates the defendant
has not accepted responsibility for his criminal conduct, however, extraordinary
cases may exist “in which adjustments under both §§ 3C1.1 and 3E1.1 may
apply.” U.S.S.G. § 3E1.1, comment. (n.4). The sentencing judge has discretion to
determine whether a defendant receives the two level reduction. United States v.
Thayer, 204 F.3d 1352, 1358 (11th Cir. 2000). Since a defendant’s continued use
of illegal drugs constitutes a continuation of the drug offense for which he was
convicted, the district court’s denial of an adjustment for acceptance of
responsibility is not clearly erroneous. United States v. Matthews, 168 F.3d 1234,
1250 (11th Cir. 1999).
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The district court did not clearly err when it accepted the probation
department’s recommendation that Lester not receive an adjustment for acceptance
of responsibility. At Lester’s pre-trial release revocation hearing, the Government
provided testimony and lab evidence that Lester, while on pre-trial release, tested
positive for cocaine use on two separate occasions. Because a district court can
use its discretion to deny an acceptance of responsibility adjustment based on the
defendant’s continued illegal drug use, the district court did not clearly err when it
denied Lester’s request for an acceptance of responsibility adjustment. See
Thayer, 204 F.3d at 1358; Matthews, 168 F.3d at 1250.
II. CONCLUSION
The district court did not err in applying the career offender, obstruction of
justice, and dangerous firearm enhancements, or in denying Lester’s request for an
acceptance of responsibility adjustment. We lack jurisdiction to review the district
court’s denial of downward departure.
AFFIRMED.
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