United States v. Michael Venetez McRae

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13905
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL VENETEZ MCRAE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 1:19-cr-00125-JRH-BKE-1
____________________
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2 Opinion of the Court 21-13905
Before NEWSOM, GRANT and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Michael Venetez McRae appeals his convictions
for possession of a firearm by a prohibited person and possession
of a controlled substance, and he appeals the district court’s impo-
sition of his 235-month total sentence. McRae asserts several errors
on appeal: (1) the district court lacked jurisdiction over this case
because the Double Jeopardy Clause prohibited him from being
federally prosecuted for the same offense conduct as that charged
in a state indictment, and because his speedy trial rights were vio-
lated; (2) the district court erred by denying his motion to suppress
as to a firearm and his statements related thereto, based on the pub-
lic safety exception, the inevitable discovery doctrine, and implied
consent; (3) the district court erred in permitting him to waive his
right to counsel because his waiver was not knowing and volun-
tary; and (4) the district court erred in sentencing him under the
Armed Career Criminal Act (“ACCA”). After reading the parties
briefs and reviewing the record, we affirm McRae’s convictions and
sentence.
I.
(A) Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment pro-
tects a defendant against successive prosecutions for the same crim-
inal offense, providing that no person may “be twice put in jeop-
ardy of life or limb” for the same offense. U.S. Const. amend. V;
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21-13905 Opinion of the Court 3
United States v. Baptista-Rodriguez, 17 F.3d 1354, 1360 (11th Cir.
1994). Nevertheless, under the dual sovereignty doctrine, a defend-
ant may be subject to successive prosecutions by two sovereigns for
the violation of each of their laws if his conduct gives rise to two
separate offenses. Puerto Rico v. Sanchez Valle, 579 U.S. 59, 66-67, 136
S. Ct. 1863, 1870 (2016). Thus, because the state and federal gov-
ernment are separate sovereigns, a prior state conviction does not
preclude the federal government from prosecuting the defendant
for the same conduct. See id.Reviewing de novo McRae’s double jeopardy challenge, we
find no error. United States v. McIntosh, 580 F.3d 1222, 1226 (11th
Cir. 2009). Because the Double Jeopardy Clause does not prohibit
McRae from being federally prosecuted for the same offense con-
duct as that charged in a state indictment, we conclude that the dis-
trict court did not lack jurisdiction over the case.
(B) Speedy Trial Rights
The Speedy Trial Act, 18 U.S.C. § 3161, et seq., prescribes
deadlines and identifies causes of delay that excuse strict compli-
ance with those deadlines. “The primary purpose of the Speedy
Trial Act is to accelerate criminal trials.” United States v. Varella, 692
F.2d 1352, 1359 (11th Cir. 1982). Thus, the Speedy Trial Act man-
dates that federal authorities must indict an incarcerated individual,
or file an information, within 70 days of his arrest in connection
with the offenses specified in the indictment, or from the date the
defendant first appears before the court in which such charge is
pending, whichever date is the latest. 18 U.S.C. § 3161(c)(1).
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4 Opinion of the Court 21-13905
The Speedy Trial Act, however, excludes periods of delay
arising from other proceedings involving the defendant, including
delay resulting from “any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt
disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D). It further
excludes any delay arising from the district court’s grant of a con-
tinuance on the ground that the ends of justice are served, provided
that the district court articulates its specific findings. Id. §
3161(h)(7)(A). Further, the Act provides a non-exclusive list of fac-
tors which a judge should consider in determining whether to
grant such a continuance. Id. § 3161(h)(7)(B). One factor is
whether “in a case in which arrest precedes indictment, delay in the
filing of the indictment is caused because the arrest occurs at a time
such that it is unreasonable to expect return and filing of the indict-
ment within the period specified . . . .” Id. § 3161(h)(7)(B)(iii).
We will consider whether a defendant’s right to a speedy
trial has been violated as a mixed question of law and fact, review-
ing questions of law de novo and questions of fact under the clearly
erroneous standard. United States v. Clark, 83 F.3d 1350, 1352 (11th
Cir. 1996). Issues not raised in a party’s initial brief on appeal are
considered abandoned. United States v. Campbell, 26 F.4th 860, 865
(11th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 95 (2022).
The record shows that, even if properly preserved, McRae’s
speedy trial argument nevertheless fails because there was no vio-
lation of his speedy trial rights between September 2019 and May
2021. All the relevant time was excluded by the need to: (i) address
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21-13905 Opinion of the Court 5
pending motions, including McRae’s motion to suppress; (ii) con-
tinue the proceedings, due to the ongoing COVID-19 health emer-
gency; (docs. 49, 53, 54, 55, 60, 67); (iii) address McRae’s efforts to
obtain replacement counsel or proceed pro se; and (iv) respond to
McRae’s motion to dismiss the indictment due to Double Jeopardy
and speedy trial concerns. 18 U.S.C. § 3161 3161(h)(7)(A); (h)(1)(D).
Further, as the district court explicitly noted, those continuances
were properly granted in the interest of justice. Thus, we affirm
the district court’s order dismissing McRae’s pretrial motions to dis-
miss based on alleged Double Jeopardy and speedy trial challenges.
II.
McRae contends that the district court erred by denying his
motion to suppress as to the firearm and his statements related
thereto, based on the public safety exception, the inevitable discov-
ery doctrine, and implied consent from the homeowner, Labrisha
Keller. The Supreme Court has established a narrow exception to
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), where there
is a threat to public safety or to law enforcement officers. United
States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007) (citing New
York v. Quarles, 467 U.S. 649, 656, 658, 104 S. Ct. 2626, 2632 (1984)).
“The public safety exception allows officers to question a suspect
without first Mirandizing him when necessary to protect either
themselves or the general public.” Id.The inevitable discovery doctrine allows the government to
introduce evidence obtained from an illegal search or other viola-
tion if there is a “reasonable probability that the evidence in
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6 Opinion of the Court 21-13905
question would have been discovered by lawful means.” United
States v. Johnson, 777 F.3d 1270, 1274 (11th Cir. 2015) (internal quo-
tation marks omitted). The government must demonstrate that
“the lawful means which made discovery inevitable were being ac-
tively pursued prior to the occurrence of the illegal conduct.” Id.(internal quotation marks omitted). In other words, the govern-
ment must show “that the police would have discovered the evi-
dence by virtue of ordinary investigations of evidence or leads al-
ready in their possession.” Id. (internal quotation marks omitted).
“An overnight guest has a reasonable expectation of privacy
in a residence sufficient to establish standing.” United States v. Maxi,
886 F.3d 1318, 1326 (11th Cir. 2018). The warrant requirement does
not apply where the homeowner voluntarily consented to the
search. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797
(1990). Consent may be nonverbal, but this consent may not be
voluntary if the officers exhibited a sufficient show of force or au-
thority that coerced the occupant to agree to the search. United
States v. Ramirez-Chilel, 289 F.3d 744, 751-52 (11th Cir. 2002).
“We review a district court’s denial of a motion to suppress
evidence for clear error as to factual findings and de novo as to its
application of the law.” United States v. Watkins, 760 F.3d 1271, 1282
(11th Cir. 2014) (emphasis added). We consider the evidence in the
light most favorable to the district court’s judgment. Id. In review-
ing the denial of a motion to suppress, we may review the entire
record, including trial testimony. Newsome, 475 F.3d at 1224. Simi-
larly, “[w]hether a person was in custody and entitled to Miranda
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warnings is a mixed question of law and fact; we review the district
court’s factual findings on the matter for clear error and its legal
conclusions de novo.” United States v. McDowell, 250 F.3d 1354, 1361
(11th Cir. 2001).
The record demonstrates that the officers’ questions regard-
ing the gun did not violate Miranda because the questions fit into
the public safety exception. Newsome, 475 F.3d at 1224. The mag-
istrate judge conducted a hearing on the motion to suppress and
found that the officer clearly expressed concern about Keller’s chil-
dren having access to the gun because he reasoned that if McRae
had a gun clip in his pocket, which he admitted he did, the gun was
nearby. In addition, the magistrate judge properly found that the
magazine should not be suppressed because the officers would
have inevitably discovered it. Johnson, 777 F.3d at 1274. Further-
more, even if McRae had a reasonable expectation of privacy as an
overnight guest in Keller’s home, see Maxi¸886 F.3d at 1326, the rec-
ord supports the magistrate judge’s finding that Keller impliedly
consented to the search, so there was no Fourth Amendment vio-
lation. Rodriguez, 497 U.S. at 181, 110 S. Ct. at 2797. Having ob-
tained consent, we conclude the officers thus did not violate the
Fourth Amendment, and we affirm the denial of the motion to sup-
press.
III.
McRae argues that the district court erred in finding that his
waiver of his right to counsel was valid. A district court’s determi-
nation on the validity of a defendant’s waiver of his Sixth
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8 Opinion of the Court 21-13905
Amendment right to counsel is generally a mixed question of law
and fact that we review de novo. United States v. Kimball, 291 F.3d
726, 730 (11th Cir. 2002).
Under the Sixth Amendment, all criminal defendants are en-
titled to the assistance of counsel. U.S. CONST. AMEND. VI. It does
not, however, guarantee defendants the unqualified right to coun-
sel of their choice, and an indigent criminal defendant does not
have a right to a particular lawyer or to demand a different ap-
pointed lawyer except for good cause. United States v. Garey, 540
F.3d 1253, 1263 (11th Cir. 2008). “Good cause . . . means a funda-
mental problem, such as a conflict of interest, a complete break-
down in communication or an irreconcilable conflict which leads
to an apparently unjust verdict.” Id. (internal quotation marks
omitted). Defendants who lack the means to hire a private attorney
must either accept the appointed counsel or represent themselves.
Garey, 540 F.3d at 1263-1264.
The right to self-representation is closely tied to the right to
representation by counsel. See id. at 1262-63. In Faretta v. California,
the Supreme Court concluded that the Sixth Amendment provides
a right to the accused to make a defense himself. 422 U.S. 806, 819,
95 S. Ct. 2525, 2533 (1975). For a waiver of the Sixth Amendment
to be valid, the defendant must clearly and unequivocally assert his
right of self-representation. Fitzpatrick v. Wainwright, 800 F.2d 1057,
1064 (11th Cir. 1986). To make a valid waiver, the district court
should make the defendant aware of the dangers and disadvantages
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of self-representations so the record will establish that he knows
what he is doing, and his choice is made with that understanding.
A proper Faretta hearing ensures that the defendant is aware of the
nature of the charges against him, possible punishments, basic trial
procedure, and the hazards of self-representation. See Kimball, 291
F.3d at 730. We have repeatedly determined that “a defendant must
have an awareness of the penal consequences of conviction before
his decision to represent himself can constitute a knowing waiver
of his Sixth Amendment right to counsel.” See, e.g., United States v.
Hakim, 30 F.4th 1310, 1323 (11th Cir. 2022), cert. denied, ___ U.S.
___, 143 S. Ct. 776 (2023); United States v. Cash, 47 F.3d 1083, 1088
(11th Cir. 1995); Kimball, 291 F.3d at 732. In Hakim, the district court
allowed the defendant to represent himself during post-trial pro-
ceedings, finding that the defendant had knowingly waived his right
to counsel after the court misinformed him of the maximum pos-
sible sentence he faced. 30 F.4th at 1314-15.
On appeal, we vacated and remanded the case, noting that
the magistrate judge “not only failed to inform Hakim of the max-
imum sentence, but he misled Hakim by incorrectly representing
that the maximum term of imprisonment would be one year, when
it was instead three years.” Id. at 1325, 1327. However, we also
explained that providing “materially incorrect information about
the defendant’s sentence does not render his waiver unknowing if
the defendant understood correct countervailing information from
another source.” Id. at 1324-25. We clarified that “[t]he ultimate
test is not the trial court’s express advice, but rather the defendant’s
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10 Opinion of the Court 21-13905
understanding,” and that giving correct advice to a defendant
about possible punishments is “the ideal method” of ensuring that
he has that understanding. Id.; Cash, 47 F.3d at 1088; Garey, 540 F.3d
at 1266 (internal quotation marks omitted).
The record demonstrates that there was no Sixth Amend-
ment violation. The magistrate judge properly considered many
elements of the Faretta hearing, confirming that McRae had not
studied law or represented himself before and that he was unfamil-
iar with the rules of the court. The magistrate judge advised
McRae of the advantages of counsel, the disadvantages of repre-
senting himself, and stated that court-appointed counsel was a
well-trained attorney. The magistrate judge confirmed that McRae
wanted to proceed pro se and appointed standby counsel. Although
the magistrate judge misinformed McRae of the maximum poten-
tial sentence he faced, McRae had countervailing information
about his potential maximum sentence from another source. At
McRae’s initial appearance, the government informed him that he
could face a penalty of 15 years to life if convicted. Thus, McRae
had knowledge of the penal consequences to his conviction and
made a knowing waiver of his right to counsel. See Hakim, 30 F.4th
at 1324-25. Accordingly, we conclude that the district court com-
mitted no reversible error.
IV.
McRae challenges his ACCA sentence enhancement on ap-
peal for the first time. We generally review ACCA enhancement
challenges de novo. See, e.g., United States v. Xavier Smith, 983 F.3d
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1213, 1222-23 (11th Cir. 2020) (whether a prior conviction is a “se-
rious drug offense” under the ACCA). However, when a defendant
does not state the grounds for an objection in the district court, we
review for plain error. United States v. Zinn, 321 F.3d 1084, 1087
(11th Cir. 2003). Under this review, the defendant must show that
there was an error, that was plain, that affected his substantial
rights, and that seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. United States v. Aguilar-Ib-
arra, 740 F.3d 587, 592 (11th Cir. 2014).
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 3 prior convictions for violent felonies or serious
drug offenses committed on occasions different from one another.
18 U.S.C. § 924(e)(1). The ACCA defines a “serious drug offense,”
in relevant part, as “an offense under State law, involving manufac-
turing, distributing, or possessing with intent to manufacture 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).
Federal law, however, governs the meaning of terms in the ACCA
and state law governs the elements of state law crimes. United
States v. Jackson (“Jackson II”), 55 F.4th 846, 850 (11th Cir. 2022), cert.
granted, 143 S.Ct. 2457 (U.S. May 15, 2023) (No. 22-6640).
First, McRae contends that because his 2017 drug convic-
tions involved ioflupane, they are ineligible for the ACCA enhance-
ment because this specific drug was not listed under the federal
drug schedule. Section 102 of the Controlled Substances Act
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defines a “controlled substance” as any substance on the federal
controlled substances schedules. See 21 U.S.C. §§ 802(6), 812. The
current version of the federal drug schedules expressly excludes io-
flupane. 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, in part:
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 2007 and 2018 contained the same wording. See id.(amendments effective from May 29, 2007, to May 5, 2008; and May
8, 2017, to May 2, 2018).
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,
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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.
McRae relies on our decision in Jackson I, to argue that his
two 2017 cocaine offenses do not qualify under the ACCA. In
United States v. Jackson (“Jackson I”), 36 F.4th 1294, 1306 (11th Cir.
2022) (vacated), we determined that the federal controlled sub-
stances schedules that defined a serious drug offense under the
ACCA were those in effect when the defendant committed his fed-
eral 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 con-
trolled-substance element was broader than the relevant version of
the federal controlled substances schedules, and his prior co-
caine-related convictions thus did not qualify as serious drug of-
fenses. Id. at 1303-04.
After vacating this decision, we held in Jackson II, that the
appellant’s Florida cocaine-related convictions qualified as serious
drug offenses. Jackson II, 55 F.4th at 861-62. We determined 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
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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 & n. 3-4. We determined that the Florida controlled sub-
stances schedules included ioflupane because Florida later
amended its schedules to exclude ioflupane. Id. at 851 n.3.
Although the district court incorrectly found that McRae’s
two 2017 cocaine distribution convictions qualified under the
ACCA, McRae cannot demonstrate plain error. McRae fails to cite
any precedent directly holding that in 2017, Georgia law included
ioflupane as a controlled substance. In light of this, McRae cannot
establish error. See Aguila-Iberra, 740 F.3d at 592.
Second, relying on Wooden v. United States, ___ U.S. ___, 142
S. Ct. 1063 (2022), McRae asserts that the district court erred in
finding that his two 2017 cocaine distribution offenses occurred on
different occasions. The ACCA mandates a minimum term of im-
prisonment of 15 years for “a person who violates section 922(g) .
. . and has three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions different from
one another.” 18 U.S.C. § 924(e) (emphasis added). In Wooden, the
Supreme Court noted that several factors may be relevant to that
determination: the amount of time between offenses, the proxim-
ity of the locations where the offenses occurred, and whether the
offenses are part of the same scheme or achieve the same objective.
Wooden, 142 S. Ct. at 1070-71. But “[i]n many cases, a single fac-
tor—especially of time or place—can decisively differentiate
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21-13905 Opinion of the Court 15
occasions.” Id. at 1071. “Offenses committed close in time, in an
uninterrupted course of conduct, will often count as part of one
occasion; not so offenses separated by substantial gaps in time or
significant intervening events.” Id.
In Penn, we “determine[d] whether two offenses occurred
on the same occasion based on the ordinary meaning of the word.”
United States v. Penn, 63 F.4th 1305, 1318 (11th Cir. 2023). We ap-
plied Wooden and concluded that “the answer [wa]s obvious:” the
defendant’s offenses “did not occur on the same occasion.” Id. We
held that the district court lawfully sentenced the defendant under
the ACCA. Id. at 1318-19. We also addressed whether the Fifth and
Sixth Amendments require a jury to find, or the defendant to ad-
mit, that the offenses occurred on different occasions. Id. at 1318.
We reviewed the challenge for plain error because the defendant
raised it for the first time on appeal. Id. We held that the defendant
did not “establish plain error” because there was no precedent
from the Supreme Court or us holding that a sentencing court can-
not perform the different occasions analysis. Id.
Under our prior panel precedent rule, we must follow a prior
binding precedent “unless and until it is overruled by this [C]ourt
en banc or by the Supreme Court.” United States v. Brown, 342 F.3d
1245, 1246 (11th Cir. 2003) (emphasis added). 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).
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16 Opinion of the Court 21-13905
The record convinces us that the district court did not err,
let alone plainly err, in determining that McRae had committed his
cocaine offenses on different occasions. His convictions occurred
on two separate occasions and the state charged him in two differ-
ent indictments. In addition, McRae’s arguments related to the dis-
trict court’s application of the ACCA enhancement are unpersua-
sive. As was the case in Penn, there is no precedent from the Su-
preme Court or us holding that a sentencing court cannot perform
the different occasions analysis. Penn, 63 F.4th at 1318. Thus, we
find no error in the district court’s application of the ACCA in
McRae’s case.
Accordingly, based on the aforementioned reasons, we af-
firm McRae’s convictions and total sentence.
AFFIRMED.