U.S.A v. Wright

• Decision Date: 26 May 2010
• Docket Number: No. 09-12685.,09-12685.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Ricky WRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

607 F.3d 708

UNITED STATES of America, Plaintiff-Appellee,v.Ricky WRIGHT, Defendant-Appellant.

No. 09-12685.

United States Court of Appeals, Eleventh Circuit.

May 26, 2010.

COPYRIGHT MATERIAL OMITTED

Christine O'Connor, Kathleen M. Williams, Stewart Glenn Abrams, Fed. Pub. Defenders, Miami, FL, for Wright.

Adam L. Schwartz, Kathleen M. Salyer, Dawn Bowen, and Anne R. Schultz and Harriett R. Galvin, Asst. U.S. Attys., Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before PRYOR and FAY, Circuit Judges, and QUIST,^* District Judge.

FAY, Circuit Judge:

Ricky Wright appeals his conviction and eighty-four month sentence for knowingly possessing a firearm and ammunition that affected interstate commerce after having been convicted of a felony. Wright presents a case of first impression as to whether section 4A1.2(k) of the United States Sentencing Guidelines applies to Florida's community control program. Wright also challenges the constitutionality of his conviction by alleging that Congress exceeded its authority in passing the law under the Commerce Clause. After careful consideration, we find that section 4A1.2(k) applies to Florida's community control program. We also find that Wright's conviction is constitutionally sound. Accordingly, Wright has presented no reversible error and we affirm the decision of the district court.

I. FACTS

A federal grand jury indicted Ricky Wright on two counts of knowingly possessing a firearm and ammunition that affected interstate commerce after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). ¹ Wright initially pled not guilty, but later changed his plea and pled guilty to one count of the indictment in exchange for dismissal of the second count.

During the plea hearing, the government proffered the following facts without objection: A confidential source working with the ATF and DEA contacted Wright and discussed purchasing a firearm from him.² Later that day, the source met with Wright and another male in Miami, Florida. At that time, the source purchased a nine millimeter pistol from the second male for $450.00. The purchase took place in Wright's presence and at his direction. Four days later, the source again contacted Wright and discussed purchasing another firearm from him. Wright sent his girlfriend to sell a .40 caliber handgun and a magazine with ammunition to the confidential informant in exchange for $2,840.00. At the time of both transactions, Wright had been convicted of multiple felonies. A record check of both firearms revealed that they had been manufactured outside of Florida.

Before sentencing, Wright challenged the Presentence Investigation Report's calculation of his criminal history under the United States Sentencing Guidelines. Wright's relevant criminal history is undisputed. Wright pled guilty to conspiracy to commit armed robbery and was sentenced to 120 days in county jail, followed by two years community control and three years probation. After serving his jail time, Wright was released from custody and his community control period commenced. Wright subsequently violated the terms of his community control by missing curfew on three separate occasions. As a result, Wright's community control was revoked and he was sentenced to 366 days in state prison.

Under the Guidelines, three criminal history points are assessed for a prior sentence of imprisonment exceeding one year and one month. See U.S.S.G. § 4A1.1(a). Whereas only two criminal history points are assessed if the prior sentence is between sixty days and thirteen months. See U.S.S.G. § 4A1.1(b). In determining the applicable length of a sentence, the Guidelines state: “In the cases of a prior revocation of probation, parole, supervised release, special parole, or mandatory release, add the original term of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used to compute the criminal history points for § 4A1.1(a),(b), or (c), as applicable.” U.S.S.G. § 4A1.2(k)(1).

The district court held that revocation of community control was governed by § 4A1.2(k) and added the 366-day sentence to the original 120-day sentence. This calculation pushed Wright past the thirteen month threshold that carried the additional criminal history point, resulting in an advisory sentencing range of 84-105 months instead of 70-87 months. Finding that a sentence at the low end of the guideline range was reasonable, the district court sentenced Wright to eighty-four months in prison.

Wright now appeals the determination that revocation of community control is governed by § 4A1.2(k) and seeks a re-calculation of his criminal history. Wright does not dispute that he violated the terms of his community control. He concedes that the only question is whether community control qualifies as a form of supervision covered by § 4A1.2(k).

II. DISCUSSION

A. U.S.S.G. § 4A1.2(k)

We review “a district court's interpretation of the Guidelines de novo and its factual findings for clear error.” United States v. Valnor, 451 F.3d 744, 750 (11th Cir.2006). Wright argues that the district court erred in finding that revocation of community control falls under § 4A1.2(k)(2)(B), which covers the revocation of “probation, parole, supervised release, special parole, or mandatory release.”³ Specifically, Wright argues that since community control is not an enumerated form of supervision under § 4A1.2(k)(2)(B), the period of imprisonment associated with his violation of community control should not count towards his criminal history. As such, Wright asserts that the district court should have assessed him two criminal history points based on his initial 120-day sentence instead of the three criminal history points derived from adding the 120-day and 366-day sentences together. If Wright prevails, his corresponding Guideline range would be 70-87 months instead of 84-105 months.

In support of his point, Wright contends that the language of the Guidelines should be given its plain and ordinary meaning. See United States v. Tham, 118 F.3d 1501, 1506 (11th Cir.1997). Wright asserts that the rule of lenity supports his argument, contending that, “[t]he policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). Wright argues that the rule of lenity applies to the Sentencing Guidelines. See United States v. Jeter, 329 F.3d 1229, 1230 (11th Cir.2003) (per curiam).

The government responds that the district court properly calculated Wright's criminal history. The government argues that the commentary to U.S.S.G. §§ 4A1.1 and 4A1.2 indicates that the forms of supervision listed are not exhaustive; therefore, sentences imposed upon revocation for other forms of supervision are counted. The government also argues that the rule of lenity is inapplicable in this case because the Sentencing Commission's intent is clear. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.2005).

This court has not squarely decided the issue of whether the imposition of a sentence after a defendant violates the terms of his community control results in the application of § 4A1.2(k). Wright is correct that the Guidelines do not use the term community control. However, the comments to § 4A1.1 state that § 4A1.2(k) applies to “revocation of probation, parole or a similar form of release.” U.S.S.G. § 4A1.1, cmt. n.1 (emphasis added). Similarly, application note 11 explains that § 4A1.2(k) “covers revocations of probation and other conditional sentences.” U.S.S.G. § 4A1.2, cmt. n.11 (emphasis added).

“[C]ommentary in the Guidelines Manuel that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). Wright has not asserted that the Guidelines or their commentary violate the Constitution or any federal statute. At oral argument, Wright's counsel argued for the first time that the commentary simply refers back to the finite list of five types of release enumerated in § 4A1.2(k) without expanding them.

Counsel juxtaposed the language in the applicable commentary to the language in § 4A1.2(c), which states, “[s]entences for the following prior offenses and offenses similar to them, by whatever name they are known....” U.S.S.G. § 4A1.2(c)(1). Arguing that § 4A1.2(c) illustrates Congress's ability to draft a section with expansive language, counsel asserts that the lack of the catch-all provision in § 4A1.2(k) indicates Congress's wish to limit the application of § 4A1.2(k) to the specific forms of release listed.

We find this argument meritless. More importantly, it was never made in Wright's brief. To give it serious consideration now violates a long standing rule that issues and contentions not raised in the initial brief are deemed abandoned. See United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir.2004). As such, we treat the commentary as authoritative and find that the enumerated forms of supervision are not exhaustive. Because the Sentencing Commission's intent is clear, we need not address the rule of lenity. Camacho-Ibarquen, 410 F.3d at 1315. Therefore, the central issue is whether community control is a similar form of release subject to § 4A1.2(k).

Similar Form of Release

The government argues that community control is a similar form of release to probation. The government relies on Florida law to inform its interpretation. Chapter 948 of the Florida Statutes, entitled “Probation and Community Control,” defines probation as “a form of community supervision...