United States v. Smith, s. 13–15227

• Citation: 775 F.3d 1262
• Decision Date: 22 December 2014
• Docket Number: 14–10075.,13–15133,Nos. 13–15227,s. 13–15227
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Travis Lamont SMITH, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Jose G. Nunez, a.k.a. Gordo, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

775 F.3d 1262

UNITED STATES of America, Plaintiff–Appellee

v.Travis Lamont SMITH, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Jose G. Nunez, a.k.a. Gordo, Defendant–Appellant.

Nos. 13–15227

13–15133

14–10075.

United States Court of Appeals, Eleventh Circuit.

Dec. 22, 2014.

Harriett Galvin, Kathleen Mary Salyer, Wifredo A. Ferrer, James Vincent Hayes, Laura Thomas Rivero, Arimentha R. Walkins, U.S. Attorney's Office, Miami, FL, Phillip Drew Dirosa, U.S. Attorney's Office, Fort Lauderdale, FL, Antonia J. Barnes, John C. McMillan, U.S. Attorney's Office, West Palm Beach, FL, for Plaintiff–Appellee.

Brenda Greenberg Bryn, Federal Public Defender's Office, Fort Lauderdale, FL, Michael Caruso, Federal Public Defender, Raymond D'Arsey Houlihan, III, Federal Public Defender's Office, Miami, FL, Lori E. Barrist, Federal Public Defender's Office, West Palm Beach, FL, for Defendant–Appellant.

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket Nos. 1:13–cr–20314–DLG–1, 9:13–cr–80117–KAM–1.

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and WALTER,^* District Judge.

Opinion

WILLIAM PRYOR, Circuit Judge:

These consolidated appeals require us to decide whether the definitions of “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A), and “controlled substance offense” under the Sentencing Guidelines, U.S.S.G. § 4B1.2(b) (Nov.2013), include crimes that do not require an element of mens rea regarding the illicit nature of the controlled substance. Both Travis Lamont Smith and Jose G. Nunez have prior convictions for Florida drug crimes that have no element of mens rea with respect to the illicit nature of the drug. In separate proceedings, Smith and Nunez pleaded guilty to federal felony offenses and received enhanced sentences when the district courts ruled that their prior convictions were, respectively, “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b). Because drug crimes without an element of mens rea can be “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b), we affirm Smith's and Nunez's sentences.

I. BACKGROUND

We divide the background in two parts. First, we discuss Smith's conviction and sentencing. Second, we discuss Nunez's conviction and sentencing.

A. Smith Is Convicted of Possession of a Firearm by a Convicted Felon and Sentenced as an “Armed Career Criminal.”

A grand jury indicted Smith on one count of possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1). Smith later pleaded guilty to that charge, and he signed a factual proffer that he “ha[d] been convicted of [four] prior felony narcotics violations.”

The presentence investigation report calculated Smith's guideline range as 151 to 188 months of imprisonment, U.S.S.G. ch. 5, pt. A, Sentencing Table, but as an “armed career criminal,” id. § 4B1.4(a), Smith faced a mandatory minimum sentence of 180 months of imprisonment under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e). The district court ruled that Smith's prior convictions for possession of marijuana with intent to sell within 1,000 feet of a school or church, Fla. Stat. § 893.13(1)(c)(2) ; sale of cocaine with intent to distribute, id. § 893.13(1)(a)(1) ; and possession of cocaine with intent to distribute, id., were “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A)(ii), that qualified Smith as an “armed career criminal,” U.S.S.G. § 4B1.4(a).

Smith objected to the sentencing enhancement on the ground that it violated his rights under the Fifth and Sixth Amendments. He argued that the Fifth Amendment required that his prior convictions be alleged in his indictment and that the Sixth Amendment required either proof to a jury beyond a reasonable doubt or his admission that his prior convictions were “serious drug offense [s],” 18 U.S.C. § 924(e)(2)(A)(ii). The district court overruled Smith's objections and sentenced him to 180 months of imprisonment. After he filed a notice of appeal, Smith filed a motion to reconsider on the ground that his prior convictions did not qualify as serious drug offenses. The district court denied his motion.

B. Nunez Is Convicted of Possession of a Firearm by a Convicted Felon and Sentenced as a “Career Offender.”

A grand jury indicted Nunez on one count of possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2) ; six counts of possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1) ; and one count of possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Nunez pleaded guilty to one count of each of the charged crimes.

The presentence investigation report calculated Nunez's guideline range as 77 to 96 months of imprisonment, U.S.S.G. ch. 5, pt. A, Sentencing Table, but as a “career offender,” id. § 4B1.1(a), his guideline range was increased to 262 to 327 months of imprisonment, id. § 4B1.1(c)(3). The district court ruled that Nunez's prior state convictions for possession of marijuana with intent to sell, Fla. Stat. § 893.13(1)(a)(2), and possession of cocaine with intent to sell, id., were “controlled substance offense[s],” U.S.S.G. § 4B1.2(b), that qualified Nunez as a “career offender,” id. § 4B1.1(a). The district court varied downward from the advisory guideline range and sentenced Nunez to 228 months of imprisonment. After Nunez filed a notice of appeal, he moved the district court to reconsider his sentence on the ground that his prior convictions were not “controlled substance offense[s],” id. § 4B1.2(b). The district court denied his motion.

II. STANDARD OF REVIEW

“We review [de novo ] constitutional sentencing issues....” United States v. Steed, 548 F.3d 961, 978 (11th Cir.2008).

III. DISCUSSION

The parties present two issues. First, Smith argues that the government violated his rights under the Fifth and Sixth Amendments because his prior convictions were not alleged in his indictment or specifically admitted by him. Second, Smith and Nunez argue that their prior convictions for Florida drug crimes do not qualify as “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A)(ii), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b). We address each argument in turn.

A. The District Court Correctly Relied on Smith's Prior Convictions.

Smith argues that the application of the mandatory minimum sentence, 18 U.S.C. § 924(e), violated his Fifth and Sixth Amendment rights. Smith argues that his prior convictions cannot be used to increase his maximum possible sentence or mandatory minimum sentence because his prior convictions were not alleged by indictment, U.S. Const. Amend. V, and he did not specifically admit that his prior convictions were serious drug offenses, U.S. Const. Amend. VI. Smith argues that the Supreme Court ruled in Alleyne v. United States that all facts that trigger mandatory minimum sentences—including the fact of a prior conviction—must be alleged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. ––– U.S. ––––, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013).

Smith's arguments fail. “[N]either the Fifth Amendment nor the Sixth Amendment prevent[s] the district court from finding the fact of [Smith]' s prior convictions, or using them to designate him a[n Armed Career Criminal].” United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir.2006). Although it is ordinarily true that all elements of a crime must be alleged by indictment and either proved beyond a reasonable doubt or admitted by a defendant, there is an exception for prior convictions. Almendarez–Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 1232–33, 140 L.Ed.2d 350 (1998). The Constitution does not require that “[t]he government ... allege in its indictment and ... prove beyond a reasonable doubt that [Smith] had prior convictions for a district court to use those convictions for purposes of enhancing a sentence.” Gibson, 434 F.3d at 1246 (internal quotation marks and citation omitted).

Alleyne did not overrule Almendarez–Torres, and the Fifth and Sixth Amendments do not limit the use of Smith's prior convictions. United States v. Harris, 741 F.3d 1245, 1250 (11th Cir.2014). We acknowledged in Harris that there is “some tension” between Almendarez–Torres and Alleyne , but “we are bound to follow Almendarez–Torres unless and until the Supreme Court itself overrules that decision.” Id. (internal quotation marks and citation omitted). The district court correctly used Smith's prior convictions to designate him an “armed career criminal.” Id.

B. Smith's Prior Convictions Are “Serious Drug Offenses,” and Nunez's Prior Convictions Are “Controlled Substance Offenses.”

As an initial matter, the parties disagree about whether an argument raised for the first time in a motion to reconsider a sentence is preserved for our review. The government argues that Smith and Nunez first raised their argument that their prior convictions were not “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b), in their motions to reconsider their sentences. The government argues that, because Smith and Nunez filed notices of appeal before they filed motions to reconsider their sentences, the district courts did not have jurisdiction to grant the motions, and we should review their sentences for plain error. Smith argues that he first raised this issue at his sentencing, and Smith and Nunez argue that, in any event, their motions to reconsider their sentences preserved their objections and our review should be de novo. Because we conclude that the district courts committed no error, we need not decide which standard of review governs this issue.

Smith and Nunez argue that their prior convictions for violations of section 893.13(1) of the Florida Statutes do not qualify as “serious drug offense[s],” 18 U.S.C. §...