United States v. Ricky Douglas Haynes, Jr.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-12335
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY DOUGLAS HAYNES, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket Nos. 6:07-cr-00054-JA-GJK-1,
6:07-cr-00073-JA-KRS-1
____________________
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2 Opinion of the Court 19-12335
Before WILLIAM PRYOR, Chief Judge, WILSON and
ANDERSON, Circuit Judges.
PER CURIAM:
Ricky Douglas Haynes, Jr. appeals his sentence of 240
months of imprisonment imposed when he was resentenced a sec-
ond time for three counts of possessing cocaine base with intent to
distribute, 21 U.S.C. § 841(a)(l), one count of using and carrying a
firearm during a drug-trafficking crime, 18 U.S.C. § 924(c)(l)(A),
and one count of possessing a firearm and ammunition as a felon,
id. § 922(g)(l). See 28 U.S.C. § 2255. We granted Haynes a certificate
of appealability to address whether he was entitled to relief under
the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372,
but Haynes has abandoned that issue as “resolved” by the district
court granting him relief under the First Step Act of 2018, Pub. L.
No. 115-391, 132 Stat. 5194. See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681 (11th Cir. 2014). Haynes argues that the dis-
trict court erred by resentencing him pursuant to the Armed Ca-
reer Criminal Act and that the Act is unconstitutional. See 18 U.S.C.
§ 924(e). Haynes also argues that the district court erred by count-
ing as a predicate offense his prior conviction in Florida for resisting
an officer with violence, see id. § 924(e)(2)(B), and by treating as
temporally distinct his convictions in 2001 for federal drug crimes
that were charged in a single indictment. We affirm.
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19-12335 Opinion of the Court 3
I. BACKGROUND
In 2007, Haynes pleaded guilty simultaneously to two indict-
ments that collectively charged him with five crimes. He admitted,
in case 07-54, to committing two firearm offenses, 18 U.S.C.
§§ 922(g)(1), 924(c)(l)(A), and one drug offense, 21 U.S.C.
§ 841(a)(l), and in case 07-73, he admitted to committing two simi-
lar drug offenses, 21 U.S.C. § 841(a)(1). Haynes’s indictment in case
07-54 alleged that he had prior convictions in a Florida court in 1996
for resisting arrest with violence and for possession of cocaine, in
1998 for possession of cocaine, and in 2002 for possessing a firearm
as a felon and for carrying a concealed firearm, and in the district
court in 2001 for possessing cocaine base with intent to distribute.
The United States notified Haynes that he faced enhancement of
his sentence, and records attached to the notice evidenced that he
had been convicted in 2001 of possessing cocaine base with intent
to distribute on February 24, 2000, and on March 9, 2000.
Haynes’s presentence investigation report classified him as
an armed career criminal and a career offender. The presentence
report identified as predicate offenses Haynes’s prior convictions in
1996 for resisting arrest with violence, in 2002 for carrying a con-
cealed firearm, and in 2001 for possessing cocaine base with intent
to distribute. The criminal history section of Haynes’s report de-
scribed his numerous prior convictions, including those in 1994 for
resisting arrest with violence, in 1995 for possession of cocaine, in
1997 for possession of cocaine, in 1999 for possession of a firearm
by a felon and for possession of cocaine with intent to distribute,
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4 Opinion of the Court 19-12335
and in 2000 for three counts of possessing cocaine base with intent
to distribute. Those prior convictions produced 12 criminal history
points, and with two points added because Haynes committed his
instant offenses less than two years after his release from custody,
U.S.S.G. § 4A1.1(e), he received a criminal history category of VI.
Haynes objected, unsuccessfully, to his classification as an
armed career criminal on the ground that his prior convictions for
resisting arrest and carrying a concealed firearm did not qualify as
violent felonies. But Haynes did not object to the existence of the
prior convictions listed in the report or to his classification as a ca-
reer offender. Haynes “ask[ed] for a much lower sentence than
what the guideline . . . recommend[ed] in [his] case,” but the pros-
ecutor “ask[ed] the [district] court to certainly sentence following
the guidelines.” The prosecutor stressed that “[n]ot only is Mr.
Haynes an armed career criminal, he’s a career offender as well, the
very example of what these categorizations and enhancements
were designed for.” And the prosecutor reminded the district court
that it was “well aware [of] and . . . familiar with Mr. Haynes” be-
cause his “last case . . . was in front of Your Honor” and that
Haynes’s “criminal history” was “riddled with [prior convictions,
including] resisting arrest with violence, possession of cocaine, pos-
session with intent, . . . [and] possession of firearm by a convicted
felon already in 1999.”
The district court sentenced Haynes using the higher pen-
alty that the Sentencing Guidelines yielded. See id. § 4B1.1. The
district court sentenced Haynes in case 07-54 to three concurrent
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19-12335 Opinion of the Court 5
terms of 322 months of imprisonment, and in case 07-73, to two
terms of 322 months of imprisonment to run concurrently with
each other and with the sentence in case 07-54. We affirmed his
convictions and sentences after an independent review of the rec-
ord revealed no issues of merit, see Anders v. California, 386 U.S.
738 (1967). United States v. Haynes, 297 F. App’x 856 (11th Cir.
2008).
In 2012, Haynes moved successfully to vacate his sentence
in case 07-54 for being a felon in possession of a firearm. See 28
U.S.C. § 2254. Haynes argued, and the United States agreed, that
his sentence of 322 months for being a felon in possession exceeded
his maximum statutory penalty of 120 months. See 18 U.S.C.
§ 924(c)(1)(A)(i). Haynes also argued that, because his prior convic-
tion for carrying a concealed firearm no longer qualified as a vio-
lent felony, see United States v. Archer, 531 F.3d 1347 (11th Cir.
2008), he was not an armed career criminal. But the United States
responded that, although carrying a concealed firearm was no
longer a predicate offense, Haynes was not entitled to relief on that
basis because he had been sentenced, and still qualified, as a career
offender. The district court ruled that Haynes had not been sen-
tenced as an armed career criminal and that he was entitled to have
his sentence for being a felon in possession vacated on the ground
his sentence exceeded the statutory maximum.
At resentencing, the district court acquiesced to defense
counsel’s request to “restructure” Haynes’s sentence in case 07-54.
During the hearing, the district court, probation officer, and
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6 Opinion of the Court 19-12335
prosecutor discussed the appropriate sentence for Haynes, as a ca-
reer offender, for possessing a firearm as a felon:
PROBATION OFFICER: If [Haynes] is not an armed career
criminal, then we agree that the maximum is 120 months. I
was under the impression that he was an armed career crim-
inal, so that’s why the maximum was 15 to life.
So as long as the Court is under the understanding
that he’s not, then the 120 is correct.
THE COURT: Right.
PROBATION OFFICER: Okay.
THE COURT: Because the qualifying offense, I think, was
carrying a concealed—was it carrying a concealed firearm,
or was it—
PROBATION OFFICER: Carrying a concealed weapon.
THE COURT: And I think that that is not a qualifying of-
fense.
PROBATION OFFICER: Okay.
THE COURT: Do you agree, Miss Wilson?
MS. WILSON: Yes.
The district court sentenced Haynes to 262 months for possessing
cocaine base with intent to distribute, 21 U.S.C. § 841(a)(l), and a
concurrent term of 120 months for possessing a firearm as a felon,
18 U.S.C. § 922(g)(1), with a consecutive term of 60 months for
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19-12335 Opinion of the Court 7
using and carrying a firearm during his drug trafficking, id.§ 924(c)(l)(A).
In 2015, Haynes filed the motion to vacate that is the subject
of this appeal. See 28 U.S.C. § 2255. Haynes argued to vacate his
sentences in cases 07-54 and 07-73 because his counsel at resentenc-
ing in 2012 should have prevented two errors. Haynes argued that
he had been misclassified as a career offender because his convic-
tion in 1996 for resisting arrest was too old to count as a predicate
offense and that his criminal history category had been miscalcu-
lated because his conviction for resisting arrest and his conviction
in 1995 for possessing cocaine were too old to include in his crimi-
nal history score. The United States argued that Haynes had proce-
durally defaulted his challenges to his sentence by failing to raise
them at trial, on appeal, or in his first motion to vacate. The United
States also argued that counsel had not been ineffective at resen-
tencing because he had been appointed for the limited purpose of
contesting Haynes’s sentence in 07-54 and because any objection
to the career offender enhancement would have been untimely and
procedurally barred.
The district court held a hearing on Haynes’s motion. The
district court acknowledged “the importance of finality,” but it was
troubled that “mistakes ha[d] been made” and proposed “just re-
sentencing from scratch.” The United States asserted that it had
“made a mistake” by agreeing that Haynes was not an armed career
criminal because he had been convicted in 2001 of “two separate
incidents” of possessing cocaine base with intent to distribute,
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8 Opinion of the Court 19-12335
which with his conviction for “resisting [arrest] with violence,
would make him an armed career criminal.”
The district court granted Haynes’s motion to vacate. 28
U.S.C. § 2255. The district court ruled that counsel at resentencing
had performed deficiently for not opposing Haynes’s classification
as a career offender and not opposing the use of two stale convic-
tions that resulted in him having 14 instead of 9 criminal history
points and a criminal history score of VI instead of IV. The district
court stated that, “under the sentencing package doctrine, [it]
had—or upon proper motion could have had—jurisdiction to re-
sentence Mr. Haynes” in both cases. After explaining that it “would
not have resentenced Mr. Haynes to 322 months in prison absent
the career offender enhancement,” the district court vacated
Haynes’s sentences in cases 07-54 and 07-73 to resentence him
“with the benefit of correctly calculated guidelines.” The district
court ordered the probation office to prepare a new presentence
investigation report.
The new presentence report classified Haynes as an armed
career criminal, and he objected. See 18 U.S.C. § 924(e). The report
listed as predicate offenses Haynes’s convictions in 1996 for resist-
ing arrest with violence and in 2001 for two counts of possessing
cocaine base with intent to distribute. Haynes argued that he was
not an armed career criminal for four reasons: the United States
had waived application of the Armed Career Criminal Act; his prior
conviction for resisting arrest with violence did not qualify as a vi-
olent felony; the United States could not prove his two drug crimes
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19-12335 Opinion of the Court 9
were temporally distinct; and enhancing his sentence based on
prior convictions not charged in his indictment or proved to a jury
would violate his rights under the Fifth and Sixth Amendments to
the Constitution.
The United States argued that the Armed Career Criminal
Act was mandatory and that precedent did not bar resentencing
with “a clean slate, an opportunity to correct errors that have been
made in this case,” and “an opportunity . . . and . . . obligation to
get it right.” The United States also asserted that Haynes’s indict-
ment and plea agreement evidenced that there were “two con-
trolled purchases of crack cocaine that happened at two different
locations on those two different dates: February 24, 2000, and
March 9, 2000.”
The district court overruled Haynes’s objections. The dis-
trict court ruled that the United States had proved that Haynes’s
two prior drug convictions were temporally distinct using valid
Shepard documents, see Shepard v. United States, 544 U.S. 13, 16
(2005), and that controlling precedent made clear that resisting ar-
rest with violence was categorically a violent felony, United States
v. Hill, 799 F.3d 1318, 1322 (11th Cir. 2015); United States v. Romo–
Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012). The district court
also ruled that “the plain language in the [Armed Career Criminal
Act] . . . ma[de] it clear that imposition of [an] enhanced sentence
is required, . . . regardless of whether the Government seeks en-
hancement . . . .” And the district court rejected Haynes’s argu-
ments that it could not make findings regarding the nature of his
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10 Opinion of the Court 19-12335
prior convictions and that “the different occasions provision is void
for vagueness.”
The district court adopted, with no objection from Haynes,
the factual statements and calculations in the presentence report.
After considering the statutory sentencing factors, 18 U.S.C. § 3553,
the district court sentenced Haynes to 240 months of imprison-
ment. In case 07-54, the district court imposed concurrent sen-
tences of 180 months of imprisonment for possessing cocaine base
with intent to distribute, 21 U.S.C. § 841(a)(l), and for being a felon
in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1),
and a consecutive term of 60 months of imprisonment for carrying
a firearm during his drug-trafficking crime, id. § 924(c)(l)(A). In case
07-73, the district court imposed sentences of 120 months of impris-
onment for Haynes’s two drug crimes and ordered that those sen-
tences run concurrent with each other and with his 180-month sen-
tences in case 07-54.
II. STANDARD OF REVIEW
We review de novo the classification of a defendant as an
armed career criminal and the validity of the Armed Career Crim-
inal Act. United States v. Deshazior, 882 F.3d 1352, 1354 (11th Cir.
2018).
III. DISCUSSION
Haynes maintains that he was erroneously sentenced as an
armed career criminal. He argues that the United States waived ap-
plication of the Armed Career Criminal Act and that the Act is
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19-12335 Opinion of the Court 11
invalid. Hayes also argues that the prior convictions used to en-
hance his sentence did not qualify as predicate offenses.
The United States did not waive application of the Act to
Haynes. “[A] waiver is the intentional relinquishment of a known
right . . . .” United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir.
2007) (en banc) (citing United States v. Olano, 507 U.S. 725, 733
(1993)). Nothing the United States said during Haynes’s sentencing
proceedings could be construed as intentionally relinquishing the
right to sentence him as an armed career criminal. At sentencing,
the United States highlighted that Haynes, as stated in his presen-
tence investigation report, was “an armed career criminal . . . [and]
a career offender” based on his numerous prior convictions that
qualified as predicate offenses to enhance Haynes’s sentence under
the Act and the Sentencing Guidelines. As we have explained,
“there is no requirement that the government prospectively ad-
dress . . . each and every . . . [aspect] of a PSI . . . in order to guard
against potential future changes in the law and [to] avoid later
claims . . . [of] waive[r] . . . .” See Tribue v. United States, 929 F.3d
at 1326, 1332 (11th Cir. 2019) (holding that the government did not
waive reliance on convictions listed in the presentence investiga-
tion report that were not identified as predicate offenses). The pros-
ecutor also did not waive application of the Act by agreeing in
Haynes’s first 2255 proceeding that his prior conviction for carrying
a concealed weapon no longer qualified as a crime of violence and
that, as a career offender, he had a statutory maximum penalty of
10 years of imprisonment for possessing a firearm as a felon.
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12 Opinion of the Court 19-12335
The district court did not err by applying the Act to Haynes.
The district court, at Haynes’s request and to remedy earlier sen-
tencing errors, vacated his sentences in both cases. That “general
vacatur of [Haynes’s] sentence[s] by default allow[ed] for resen-
tencing de novo.” United States v. Martinez, 606 F.3d 1303, 1304
(11th Cir. 2010). At that de novo resentencing, so long as Haynes
had three or more prior convictions for “a violent felony or a seri-
ous drug offense, or both,” 18 U.S.C. § 924(e)(1), the “sentence en-
hancement pursuant to § 924(e) . . . [had to] automatically be ap-
plied by the [district] court[],”United States v. Cobia, 41 F.3d 1473,
1475 (11th Cir 1995). See United States v. Sharp, 21 F.4th 1282, 1285
(11th Cir. 2021); United States v. Symington, 781 F.3d 1308, 1313
(11th Cir. 2015) (“hold[ing] that the district court did not err in sen-
tencing Symington in accordance with the ACCA because the
ACCA is mandatory”).
Haynes’s two constitutional challenges to the Act fail.
Haynes argues that the “different occasions” provision is void for
vagueness. But “a penal statute . . . satisf[ies] due process . . . [if it]
define[s] the criminal offense [1] with sufficient definiteness that or-
dinary people can understand what conduct is prohibited and [2] in
a manner that does not encourage arbitrary and discriminatory en-
forcement.” Skilling v. United States, 561 U.S. 358, 402–03 (2010).
A defendant can readily “identify an ‘occasion’ . . . [g]iven that the
term in ACCA has just its ordinary meaning,” Wooden v. United
States, 142 S. Ct. 1063, 1071 (2022), that offenses occur at different
times and involve “separate and distinct criminal episodes,” United
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19-12335 Opinion of the Court 13
States v. Dudley, 5 F.4th 1249, 1259 (11th Cir. 2021), cert. denied,
142 S. Ct. 1376 (2022) (quoting United States v. Sneed, 600 F.3d
1326, 1329 (11th Cir. 2010)) (alteration adopted). So, a defendant
using “a single factor—especially of time or place—can decisively
differentiate occasions.” Wooden, 142 S. Ct. at 1071. And Haynes’s
“argument that judicially determining whether prior convictions
were committed on different occasions from one another for pur-
poses of the ACCA violates a defendant’s Fifth and Sixth Amend-
ment rights” is foreclosed by our precedents. Dudley, 5 F.4th at
1260 (citing United States v. Longoria, 874 F.3d 1278 (11th Cir.
2017), United States v. Weeks, 711 F.3d 1255 (11th Cir. 2013), and
United States v. Overstreet, 713 F.3d 627 (11th Cir. 2013)).
Haynes’s argument that his prior conviction for resisting ar-
rest is not a violent felony is foreclosed by precedent too. We re-
cently reaffirmed in Deshazior, 882 F.3d at 1355, that a conviction
in Florida for resisting arrest with violence, Fla. Stat. § 843.01, is
categorically a violent felony under the elements clause of the Act.
See United States v. Hill, 799 F.3d 1318, 1322–23 (11th Cir. 2015);
United States v. Romo–Villalobos, 674 F.3d 1246, 1251 (11th Cir.
2012). That precedent is “binding in this circuit unless and until it
is overruled or undermined to the point of abrogation by the Su-
preme Court or by this Court sitting en banc.” Deshazior, 882 F.3d
at 1355.
The district court also did not err in determining that
Haynes’s two convictions in 2001 for possessing cocaine base with
intent to distribute, 21 U.S.C. § 841(b)(1)(C), were temporally
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14 Opinion of the Court 19-12335
distinct. To determine whether Haynes’s “prior convictions were
committed on different occasions from one another, [the] district
court [could] rely on ‘non-elemental facts’ contained in . . . Shep-
ard-approved sources.” Dudley, 5 F.4th at 1260. “Shepard docu-
ments may include the charging document, any plea agreement
submitted to the court, the transcript of the plea colloquy, or any
‘record of comparable findings of fact adopted by the defendant
upon entering the plea.’” United States v. Gandy, 917 F.3d 1333,
1339 (11th Cir. 2019) (quoting Shepard, 544 U.S. at 20–21, 26).
Haynes’s indictment and the written judgment stated that he com-
mitted the drug offenses “on or about February 24, 2000,” and “on
or about March 9, 2000.” Those records proved that Haynes’s two
drug offenses were “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1).
IV. CONCLUSION
We AFFIRM Haynes’s sentence.