United States v. Frankie Shearry, Jr.

USCA11 Case: 22-10849 Document: 28-1 Date Filed: 05/02/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10849
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANKIE SHEARRY, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:19-cr-00042-WLS-TQL-1
____________________
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2 Opinion of the Court 22-10849
Before ROSENBAUM, BRANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
Frankie Shearry, Jr. appeals his sentence of 188 months’ im-
prisonment for possession of a firearm by a convicted felon. He
argues that the District Court plainly erred in finding his four prior
Georgia cocaine convictions qualified as serious drug offenses un-
der the Armed Career Criminal Act (the “ACCA”), 18 U.S.C.
§ 924(e). Because there is no binding precedent holding that
Shearry’s prior convictions do not qualify as serious drug offenses,
the District Court did not plainly err. We affirm.
I.
On August 15, 2019, a grand jury in the Middle District of
Georgia indicted Frankie Shearry, Jr. on one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e). The indictment included a notice that Shearry had
prior convictions in Georgia that triggered a mandatory minimum
sentence of 15 years imprisonment under the ACCA. Shearry
pleaded guilty.
The presentence investigation report (the “PSR”) indicated
that multiple agencies began investigating Shearry after receiving
an anonymous fax that he was using drugs. Based on that tip, law
enforcement personnel searched Shearry’s home as part of a
county-wide operation focusing on certain probationers based on
their criminal history or current status as probationers. They
found two .380 caliber semi-automatic pistols, as well as drugs.
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22-10849 Opinion of the Court 3
Shearry admitted to possessing the firearms for protection, despite
the fact that he was prohibited from owning them. He also admit-
ted to possessing drugs.
The PSR identified the base offense level for a violation of
§ 922(g)(1) as 24 and assessed Shearry a four-level increase for pos-
sessing the firearms in connection with another felony offense. As
relevant here, the PSR noted that Shearry qualified as an armed ca-
reer criminal because he had four prior convictions for serious drug
offenses. Applying the ACCA enhancement, Shearry’s adjusted of-
fense level was 34. The PSR then applied a three-level deduction
for acceptance of responsibility.
Shearry’s criminal history included a 1995 conviction for
possession of marijuana with intent to distribute and two convic-
tions for possession of cocaine in 1999 and 2002. As relevant for
the ACCA enhancement, the PSR indicated that Shearry had prior
convictions in Georgia for possession of cocaine with the intent to
distribute in 1999, 2003, 2007, and 2009. Shearry’s prior criminal
history resulted in a total criminal history score of 16 and a criminal
history category of VI.
Finally, the PSR explained that § 924(e)(1) carried a mini-
mum term of imprisonment of 15 years and a maximum term of
life. The guideline range was 188 to 235 months. Shearry did not
file any objections to the PSR, nor did he object to the PSR at the
sentencing hearing.
The District Court sentenced Shearry to 188 months’ impris-
onment—the lowest possible guideline sentence—followed by
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4 Opinion of the Court 22-10849
three years of supervised release. When the Court asked if there
were any objections to the sentence, Shearry’s attorney made a
“substantive reasonableness objection to the sentence under the
theory that although we understand [18 U.S.C. §] 924(e) and what
the statutes require we do think that’s unreasonable.” Sent’g Tr.,
Doc. 95 at 14–15. The District Court overruled that objection.
Shearry timely appealed. On appeal, Shearry argues the Dis-
trict Court committed plain error in finding that his prior cocaine
convictions qualified as serious drug offenses under the ACCA. His
argument in his initial brief was based on this Court’s original deci-
sion in United States v. Jackson (“Jackson I”), 36 F.4th 1294 (11th Cir.
2022), and his initial brief was filed before that decision was va-
cated. Shearry’s argument was that Georgia’s definition of cocaine
was broader than the federal definition—just like Florida’s defini-
tion of cocaine in Jackson I. According to Shearry, Georgia’s defini-
tion of cocaine, like Florida’s, defined cocaine to include ioflupane,
but the federal definition excluded ioflupane as a controlled sub-
stance. After Shearry filed his initial brief, this Court vacated its
decision in Jackson I—the sole opinion Shearry relied on to establish
that the District Court’s error was plain.
II.
We review de novo whether a prior state conviction qualifies
as a serious drug offense under the ACCA. United States v. Jackson
(“Jackson II”), 55 F.4th 846, 849–50 (11th Cir. 2022), petition for cert.
filed, (U.S. Jan. 26, 2023) (No. 22-6640). Federal law governs the
meaning of terms in the ACCA and state law governs the elements
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22-10849 Opinion of the Court 5
of state-law crimes. Id. at 850. But when, as here, a defendant does
not raise a sentencing issue before the district court, we review for
plain error. United States v. Jones, 743 F.3d 826, 828 (11th Cir. 2014).
To establish plain error, a defendant must show: (1) an error, (2)
that was obvious, (3) that affected the defendant’s substantial
rights, and (4) that seriously affected the fairness, integrity, or pub-
lic reputation of the proceedings. United States v. Aguilar-Ibarra, 740
F.3d 587, 592 (11th Cir. 2014). Before an error is subject to correc-
tion under the plain error rule, it must be plain under controlling
precedent or the language of a statute or rule. Id. at 592 (quoting
United States v. Beckles, 565 F.3d 832, 842 (11th Cir. 2009) (quotation
marks and brackets omitted)). It is enough that the error is plain at
the time of appellate consideration. Johnson v. United States, 520
U.S. 461, 468, 117 S. Ct. 1544, 1549 (1997).
The ACCA requires that any person who violates 18 U.S.C.
§ 922(g) serve a mandatory minimum sentence of 15 years when
the defendant has three prior convictions for violent felonies or se-
rious drug offenses committed on occasions different from one an-
other. 18 U.S.C. § 924(e)(1). The ACCA defines a “serious drug
offense,” in relevant part, as “an offense under State law, involving
manufacturing, distributing, or possessing with intent to manufac-
ture or distribute, a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802)).” Id.§ 924(e)(2)(A)(ii). Section 102 of the Controlled Substances Act de-
fines a “controlled substance” as any substance on the federal con-
trolled substances schedules. See 21 U.S.C. §§ 802(6), 812. The cur-
rent version of the federal drug schedules expressly excludes
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6 Opinion of the Court 22-10849
ioflupane. 21 C.F.R. § 1308.12(b)(4)(ii). However, the federal drug
schedules included ioflupane until 2015. Jackson II, 55 F.4th at 851
& n.4.
Georgia law prohibits possession with intent to distribute
any controlled substance. Ga. Code Ann. § 16-13-30(b). In its cur-
rent controlled substances schedules, Georgia includes:
Cocaine, coca leaves, any salt, compound, derivative,
stereoisomers of cocaine, or preparation of coca
leaves, and any salt, compound, derivative, stereoiso-
mers of cocaine, or preparation thereof which is
chemically equivalent or identical with any of these
substances, but not including decocainized coca
leaves or extractions which do not contain cocaine or
ecgonine.
Ga. Code Ann. § 16-13-26(1)(D). It does not specifically include or
exclude ioflupane. Id. The versions of the definition of cocaine in
effect in 2003, 2007, and 2009 contained the same wording. See id.(amendments effective from 2000 to May 28, 2007; May 29, 2007 to
May 5, 2008; and Apr. 21, 2009 to June 2, 2010).
We apply the categorical approach to determine whether a
defendant’s state conviction is a serious drug offense under the
ACCA. Jackson II, 55 F.4th at 850. Under the categorical approach,
we consider the statutory definition of the state offense rather than
the facts of the crime itself. Id. A state conviction qualifies only if
the state statute under which the conviction occurred defines the
offense in the same way as, or more narrowly than, the ACCA’s
definition of a serious drug offense. Id.
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22-10849 Opinion of the Court 7
In Jackson, we initially vacated and remanded a defendant’s
ACCA-enhanced sentence, holding that the appellant’s Florida co-
caine-related offenses did not qualify as serious drug offenses under
the ACCA. Jackson I, 36 F.4th at 1306. We determined that the fed-
eral controlled substances schedules that defined a serious drug of-
fense under the ACCA were those in effect when the defendant
committed his federal offense and that those schedules did not
cover ioflupane at the time he committed his federal offense. Id. at
1299–1302. Since the relevant Florida statute covered ioflupane
when he was convicted of his prior cocaine-related offenses, the
Florida statute’s controlled-substance element was broader than
the relevant version of the federal controlled substances schedules,
and his prior cocaine-related convictions thus did not qualify as se-
rious drug offenses. Id. at 1303–04.
We vacated our decision in Jackson I and, in Jackson II, held
that the appellant’s Florida cocaine-related convictions qualified as
serious drug offenses. Jackson II, 55 F.4th at 861–62. We held that
the ACCA’s definition of a serious drug offense incorporates the
version of the federal controlled substances schedules in effect
when the defendant was convicted of the prior state drug offense.
Id. at 854. We concluded that the appellant’s 1998 and 2004 Florida
cocaine-related convictions qualified because Florida’s controlled
substances schedules included ioflupane until 2017 and the federal
controlled substance schedules also included ioflupane until 2015.
Id. at 851 & nn.3–4. We concluded the Florida controlled sub-
stances schedules included ioflupane because Florida later
amended its schedules to exclude ioflupane. Id. at 851 n.3.
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8 Opinion of the Court 22-10849
Under our prior precedent rule, “a prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or
this court sitting en banc.” United States v. Dudley, 5 F.4th 1249, 1265
(11th Cir. 2021) (internal quotation marks omitted), cert. denied, 142
S. Ct. 1376 (2022). A subsequent panel cannot overrule a prior
panel even if it is convinced the prior panel was wrong. United
States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc).
Here, the District Court did not plainly err in finding that
Shearry’s prior Georgia cocaine-related convictions were serious
drug offenses because there is no binding precedent holding that
they do not qualify as serious drug offenses. Moreover, Shearry
concedes that his argument that his Georgia convictions were not
serious drug offenses relied on Jackson I—which was vacated and
superseded by Jackson II—and that his argument is foreclosed by
Jackson II. Aside from Jackson I, Shearry does not point to any other
precedent from this Court or the Supreme Court to show that the
District Court’s alleged error was plain. We are bound by our hold-
ing in Jackson II. Shearry’s argument that Jackson II was wrongly
decided is not enough to overcome the prior panel precedent rule.
See Steele, 147 F.3d at 1317–18. Because an error must be clear un-
der binding precedent or the language of a statute or rule in order
to be “plain,” Shearry’s argument does not satisfy the second prong
of plain error review. Accordingly, we affirm.
AFFIRMED.