United States v. Kennedy Fisher Riley

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11641
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20892-DPG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNEDY FISHER RILEY,
a.k.a. Pine,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 2, 2016)
Before JORDAN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Kennedy Riley appeals his 151-month sentence for possession of cocaine, in
violation of 18 U.S.C. 922(a)(1). Riley raises two issues on appeal. First, he
argues that the district court erred by not making a definitive finding as to whether
his prior cocaine possession conviction was counseled. Second, he argues that the
conviction is not a controlled substance under the Sentencing Guidelines.
I.
On appeal, Riley argues that the district court made a substantial procedural
error during his sentencing hearing when it failed to make a finding as to whether
he had counsel for the 2011 conviction, as required by Fed.R.Crim.P.
32(i)(3)(B). He claims that the district court overruled his objection to the career
offender enhancement without making the required finding. Absent the career
offender designation, Riley argues that his sentencing guidelines range would
have been 46-57 months.
We normally review de novo legal questions concerning the Federal Rules
of Criminal Procedure. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir.
2006). A claim preserved at sentencing is reviewed for harmless error if it does
not affect the substantial rights of the parties. United States v. Petho, 409 F.3d
1277, 1279 (11th Cir. 2005). Under this standard, we will only reverse if the
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error resulted in actual prejudice because it has a substantial and injurious or
influence on a defendant’s sentence. Id.
Under Rule 32, a district court must—for any disputed portion of the
presentence report or other controverted matter—rule on the dispute or determine
that a ruling is unnecessary either because the matter will not affect sentencing, or
because the district court will not consider the matter in sentencing. Fed. R. Crim.
P. 32(i)(3)(B). A defendant triggers Rule 32(i)(3)(B) only by challenging
statements of fact that are in the PSI. United States v. Owen, 858 F.2d 1514, 1517
(11th Cir. 1988).
For any finding that the district court makes under Rule 32(i)(3)(B), the
sentencing court “must append a copy of the court’s determinations under this
rule to any copy of the presentence report made available for the Bureau of
Prisons.” Fed. R. Crim. P. 32(1)(3)(C); see also United States v. Lopez, 907 F.2d
1096, 1101 (11th Cir. 1990). Strict adherence to Rule 32 is necessary because
the rule helps ensure that future decisions about a defendant’s penal treatment are
based on a fair and accurate PSI. Lopez, 907 F.2d at 1101. Further, if a
defendant challenges factual statements in the PSI, the government is required to
support the PSI by some reliable substantiation that is satisfactory to convince
the sentencing court that the truth of the PSI is not unlikely. United States v.
Restrepo, 832 F.2d 146, 149 (11th Cir. 1987).
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We have held that an appellant generally cannot collaterally attack prior
convictions used in sentencing proceedings. United States v. Roman, 989 F.2d
1117, 1120 (11th Cir. 1993). If the defendant can demonstrate that a conviction
was presumptively void, though, the sentencing court is constitutionally required
to review the earlier conviction before relying on it. Id. at 1118. A defendant
ultimately bears the burden to show that his conviction is presumptively void.
United States v. Cooper, 205 F.3d 1279, 11287 (11th Cir. 2000).
The district court erred when it did not make an explicit ruling concerning
whether Riley’s 2011 conviction was counseled. The district court stated that it
considered the evidence ambiguous, and it overruled the objection without making
an actual finding. Although it may be argued that the district court made an
implicit finding, Rule 32(i)(3)(B) requires that the district court make its findings
concerning factual disputes explicit or conclude that a finding is unnecessary. In
this case, it was necessary that the district court make a finding because using the
conviction to support career offender status added 30-40 months to Riley’s
sentence, and thus the error was not harmless. Moreover, the district court itself
concluded that the state court record was unclear in certain respects, defense
counsel averred that the plea “really wasn’t counseled,” and Riley’s statements in
allocution also cast doubt about what happened.
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Finally, although the PSI showed that Riley committed many other
controlled substance offenses in the past, those convictions cannot be used to
support career offender status as they fall outside the fifteen year limit set out in
the Guidelines. Accordingly, we vacate in this respect and remand for further
proceedings.
II.
Riley argues, for the first time on appeal, that the district court erroneously
found that his F10004780A conviction under Fla. Stat. § 893.13 was a qualifying
substance offense under U.S.S.G. § 4B1.2. He recognizes that his argument is
foreclosed by United States v. Smith, 775 F.3d 1262 (11th Cir. 2014), cert. denied,
135 S. Ct. 2825 (2015), but he claims that this precedent violates the Supreme
Court’s ruling in United States v. LaBonte, 520 U.S.751, 117 S. Ct. 1673 (1997).
He argues that LaBonte requires controlled substance offenses under the
Guidelines be equivalent to federal controlled offenses, and because section
893.13 lacks a mens rea element, the conviction cannot qualify as a controlled
substance offense.
When appropriate, we review the district court’s application of the
Guidelines de novo. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.
2006). However, when a defendant fails to object to errors at the district court
level, we review for plain error. United States v. Shelton, 400 F.3d 1325, 1328
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(11th Cir. 2005). 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 U.S.S.G. § 4B1.1, a defendant is a career offender if he is over the
age of 18, the instant offense is a controlled substance felony or crime of violence,
and the defendant has at least two prior felony convictions for a controlled
substance felony or crime of violence. U.S.S.G.§ 4B1.1(a). A “controlled
substance offense”
means 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 a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
Id. § 4B1.2(b).
Florida law punishes the sale, manufacture, delivery, or possession with
intent to sell, manufacture, or deliver cocaine within 1,000 feet of a church or
school as a first-degree felony. See Fla. Stat. § 893.13(e)(1). First-degree felonies
are punishable by up to 30 years’ imprisonment. Id. § 755.082(3)(b)(1).
In Smith, we determined that a prior conviction under § 893.13 was a
“controlled substance offense” under § 4B1.2(b). United States v. Smith, 775 F.3d
1262, 1267-68 (11th Cir. 2014), cert denied, 135 S. Ct. 2825 (2015). We rejected
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the argument that it must search for the elements of the “generic” federal definition
of a “controlled substance offense” because that term was already defined in the
Sentencing Guidelines. Id. at 1267. As such, a conviction for violation of §
893.13 counted as a controlled substance offense under the Guidelines, even if it
lacked the mens rea element of federal law. Id. The appellant in that case also
argued that state crimes must be “substantially similar” to federal drug trafficking
crimes. We rejected that argument, explaining that an earlier version of the
Guidelines defined a controlled substance offense as an enumerated list of federal
drug trafficking crimes and “similar offenses.” Id. at 1268. Once the Guidelines
were amended, that analysis became unnecessary. See id. at 1267 (“The
definition[] require[s] only that the predicate offense . . ‘prohibit[s],’ U.S.S.G.
§ 4B1.2(b), certain activities related to controlled substances.” Id.
Riley’s claim is foreclosed by the prior precedent rule and Smith. His prior
conviction under § 893.13 falls within the plain meaning of the Guidelines. See
id. at 1267–68. His conviction for possessing cocaine was a felony punishable by
up to 30 years’ imprisonment. See Fla. Stat. § 775.082(3)(b)(1). As such, under
the definition of a “controlled substance offense” in the Sentencing Guidelines,
Riley’s prior conviction was an offense under state law, punishable by a term of
imprisonment exceeding one year, and concerned the distribution, dispensing, or
the possession with intent to distribute or dispense of a controlled substance. See
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U.S.S.G. § 4B1.2(b). Because Riley’s prior conviction falls within the Guidelines’
definition, it was a predicate controlled substance offense. See Smith, 775 F.3d at
1267-68. Riley is unable to show that an error occurred, and therefore, he would
lose even if we reviewed his claim de novo. Thus, the district court correctly
found Riley’s 2011 conviction supported his career offender status, and we affirm
in this respect.
AFFIRMED IN PART, VACATED AND REMANDED IN PART
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