U.S. v. James

Decision Date17 November 2005
Docket NumberNo. 04-12915.,04-12915.
Citation430 F.3d 1150
PartiesUNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. Alphonso JAMES, Jr., Defendant-Appellee-Cross-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Appeals from the United States District Court for the Middle District of Florida.

Before BLACK, WILSON and COX, Circuit Judges.

WILSON, Circuit Judge:

This appeal addresses whether certain Florida state convictions qualify as predicate felony convictions under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Alphonso James, Jr. was indicted for possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found that two of James's previous felony convictions qualified as predicate convictions under the ACCA, but rejected a third conviction, and therefore, did not enhance James's sentence under the ACCA. The United States ("the Government") appeals the district court's ruling. James cross-appeals, challenging the district court's decision to count one of his previous convictions as a qualifying felony under the ACCA. James also argues that § 922(g) is unconstitutional.

We hold that the district court erred when it held that James's Florida conviction for trafficking in cocaine by possession of between 200 and 400 grams of cocaine was not a predicate conviction under the ACCA. We therefore vacate the sentence imposed and remand, directing the district court to sentence James in accordance with the ACCA.

I. BACKGROUND

In June of 2003, the Government charged James with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). James pled guilty as charged.

The Government sought to have James's sentence enhanced under the ACCA, 18 U.S.C. § 924(e). The ACCA provides a mandatory minimum term of imprisonment of 15 years for any person who violates 18 U.S.C. § 922(g) after three convictions in either federal or state court for a "violent felony" or "serious drug offense." See § 924(e). In 1997, James was convicted in a Florida state court of attempted burglary of a dwelling, in violation of Florida Statute §§ 810.02 and 777.04. In 1998, James was convicted in Florida state court of trafficking in illegal drugs in violation of Florida Statute § 893.135. Later that year, James was again convicted in Florida state court under the same statute for trafficking in cocaine by possession of between 200 and 400 grams of cocaine. Based on James's three prior felony convictions, the probation officer recommended that James be sentenced as an armed career criminal under the ACCA.

At sentencing, James objected, arguing that neither his attempted burglary conviction, nor his trafficking by possession conviction, should count as a predicate conviction under the ACCA. The district court concluded that James's attempted burglary conviction was a "violent felony" under § 924(e)(2)(B) of the ACCA. The district court also concluded, however, that James's trafficking by possession conviction did not qualify as a "serious drug offense" under § 924(e)(2)(A) of the ACCA, reasoning that the Florida statute under which James was convicted did not include as an element of proof that James had intended to distribute his 200 to 400 grams of cocaine. Therefore, the district court refused to enhance James's sentence under the ACCA because he did not qualify as an armed career criminal, as he had only two predicate convictions. The district court sentenced James to 71 months' imprisonment, followed by 36 months' supervised release.

The Government now appeals the district court's decision not to count James's trafficking by possession conviction as a "serious drug offense" for purposes of sentencing him under the ACCA. James cross-appeals, challenging the district court's decision to count his attempted burglary conviction as a "violent felony." James further argues that § 922(g) is unconstitutional either facially, or as applied to him, because it exceeds Congress's authority under the Commerce Clause.

II. DISCUSSION

There are two issues on appeal:1 (1) whether the district court erred by failing to count James's conviction for trafficking in cocaine by possession of between 200 and 400 grams of cocaine as a "serious drug offense" under the ACCA; and (2) whether the district court erred by counting James's conviction for attempted burglary of a dwelling as a "violent felony" under the same statute. We review de novo whether a conviction is a "violent felony" or a "serious drug offense" within the meaning of § 924(e). United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir.2002) (per curiam).

A. Whether Trafficking in Cocaine by Possession of between 200 and 400 Grams of Cocaine is a "Serious Drug Offense"

The Government argues that the district court erred by failing to count James's Florida state conviction for trafficking in cocaine by possession of between 200 and 400 grams of cocaine as a "serious drug offense" under the ACCA. The ACCA defines a "serious drug offense" as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law." § 924(e)(2)(A)(ii).

The Florida Statute under which James was convicted, section 893.135(1)(b)(1)(b), reads as follows:

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in § 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as "trafficking in cocaine,". . . . If the quantity involved:

. . .

b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.

The district court concluded that the statute did not satisfy the ACCA's requirement that the offense involve the "intent to manufacture or distribute," § 924(e)(2)(A)(ii), because the Florida statute does not have "as an element" of the offense an intent to manufacture or distribute.

On appeal, the Government argues that Congress defined a "serious drug offense" under the ACCA to include any state offense "involving" the intent to distribute, not only those offenses having "as an element" such intent. In support, the Government cites United States v. Madera-Madera, 333 F.3d 1228 (11th Cir.2003), cert. denied, 540 U.S. 1026, 124 S.Ct. 589, 157 L.Ed.2d 447 (2003), in which we rejected the district court's reasoning in an analogous context. In Madera-Madera, the defendant committed a prior offense of possession of 87 grams of methamphetamine, a violation of a Georgia law prohibiting the possession of 28 grams or more of the drug. Id. at 1231. We had to determine whether such an offense qualified as a "drug trafficking offense" for purposes of enhancement under the Sentencing Guidelines. Id. Although Georgia law expressly designated the defendant's offense as drug "trafficking," the defendant argued that the offense should not be considered a trafficking offense under the Sentencing Guidelines because he merely possessed the drugs. Id. We rejected this argument for several reasons. Id.

We explained that Georgia enacted a three-tiered scheme for punishing drug crimes: (1) possession of any amount; (2) possession with the intent to distribute any amount; and (3) "trafficking" by possession of more than 28 grams. Id. Further, we concluded that such a scheme necessarily recognizes that someone who is convicted of drug trafficking, the offense to which the defendant pled guilty, "plans on distributing and thereby `trafficking' those drugs. In making possession of 28 grams of methamphetamine a `trafficking' offense, Georgia's trafficking statute necessarily infers an intent to distribute once a defendant possess a certain amount of drugs." Id. at 1232. The Government here argues that Florida has nearly an identical three-tiered scheme, and therefore, we should apply our reasoning in Madera-Madera to hold that Florida's drug trafficking statute also infers an intent to distribute.

In response, James relies on Gibbs v. State, 698 So.2d 1206 (Fla.1997), a case that the district court referenced when making its ruling. In Gibbs, the Florida Supreme Court held that Florida convictions for both simple possession of cocaine and drug trafficking by possession of cocaine based on the same conduct violated the Double Jeopardy Clause because none of the elements of the drug trafficking statute differed from the elements of the simple possession statute. Id. at 1208-10. James argues that this case indicates that drug trafficking by possession in Florida does not involve the intent to manufacture or distribute.

In determining whether a particular offense is a "serious drug offense" under the ACCA, sentencing courts adopt a categorical approach, looking only to the statutory definition of the crime charged, rather than the actual facts of the individual's prior conviction. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also, Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005). The definition of a qualifying state offense under the ACCA is a matter of federal law. Taylor, 495 U.S. at 590-91, 110 S.Ct. 2143.

Florida, like Georgia, has a three-tiered scheme for punishing drug-related offenses. Under Florida law, those three tiers are the...

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