United States v. Smith

• Decision Date: 09 February 2023
• Docket Number: 20-12609,20-12773
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee v. BENJAMIN SMITH, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENJAMIN SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

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UNITED STATES OF AMERICA, Plaintiff-Appellee v. BENJAMIN SMITH, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENJAMIN SMITH, Defendant-Appellant.

Nos. 20-12609, 20-12773

United States Court of Appeals, Eleventh Circuit

February 9, 2023

DO NOT PUBLISH

Appeals from the United States District Court for the Northern District of Georgia D.C. Docket No 1:18-cr-00305-ELR-CMS-1

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.

PER CURIAM

In 2018, Benjamin Smith, a prior convicted felon, was arrested on an outstanding warrant. At the time of his arrest, he had a firearm in his possession. As a result, a grand jury indicted him for possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). A jury convicted Smith as charged, and the district court sentenced him as an armed career criminal under the Armed Career Criminal Act ("ACCA") to 235 months' imprisonment followed by three years' supervised release.

The main issue we must address in this appeal is whether the district court erred in concluding that Smith's prior Georgia convictions for aggravated assault with intent to rob, aggravated assault, and criminal attempt to commit armed robbery qualify as violent felonies for purposes of the ACCA. Additionally, we address Smith's arguments that (1) the district court erred in denying Smith's motion for a new trial; (2) the government committed prosecutorial misconduct by misstating the law during closing argument; (3) the district court abused its discretion in denying Smith's counsel's motion to withdraw; and (4) the district court erred in enhancing Smith's sentence under the ACCA without submitting his prior convictions to the jury. After review and with the benefit of oral argument, we conclude that Smith's convictions for Georgia aggravated assault with intent to rob, Georgia aggravated assault, and Georgia criminal attempt to commit armed robbery do not qualify as violent felony predicates for purposes of the ACCA enhancement. Because Smith does not have three qualifying predicate convictions, the ACCA enhancement cannot stand. Therefore, we vacate Smith's sentence and remand for resentencing. We affirm as to the other issues.

I. Background

In August 2018, a grand jury in the Northern District of Georgia indicted Smith on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). Prior to trial, Smith filed a motion in limine seeking to exclude details of his prior convictions at trial and seeking redaction of these prior convictions from the indictment. He offered to stipulate that prior to the instant charged offense, he had sustained a felony conviction. The district court granted his motion and accepted the parties' stipulation. Smith's trial began in February 2019, but the district court declared a mistrial due to improper prejudicial testimony from the State's first witness.

In May 2019, between the mistrial and the retrial, the government obtained a superseding indictment. The superseding indictment alleged as follows:

On or about April 27, 2018, in the Northern District of Georgia, the defendant, BENJAMIN SMITH, knowing that he had been previously convicted of at least one of the following offenses:

(1) Theft By Shoplifting, on or about April 6, 1998, in Fulton County Superior Court, Atlanta, Georgia;

(2) Aggravated Assault, on or about January 4, 1999, in Fulton County Superior Court, Atlanta, Georgia; (3) Aggravated Assault, on or about February 6, 2009, in Fulton County Superior Court, Atlanta, Georgia; and

(4) Possession of a Firearm by a Convicted Felon, on or about March 23, 2010, in Fulton County Superior Court, Atlanta, Georgia;

each of which was a crime punishable by imprisonment for a term exceeding one year, did knowingly possess the following firearm in and affecting interstate and foreign commerce: a Smith and Wesson, .38 caliber revolver, in violation of Title 18, United States Code, Sections 922(g)(1) and 924(e)(1).

Smith filed a motion to strike the language in the superseding indictment that he knew that he had been previously convicted of a felony. He acknowledged that the government added this language in anticipation of the Supreme Court's decision in the then-pending case Rehaifv. United States, which presented the question of whether knowledge of one's prohibited status was an element of a § 922(g) offense. However, because Rehaifwas still pending, Smith argued that the knowledge of status language should be struck as mens rea about one's status was not an element of the offense. The district court granted Smith's motion and struck the challenged language from the indictment, finding that mens rea of one's status was not an element of the offense.

At trial, officers with the Atlanta Police Department's ("APD") Fugitive Unit testified that in April 2018, a warrant issued for Smith on an unrelated matter. The officers learned that Smith was a mobile mechanic and arranged a meeting with Smith near a local AutoZone under the guise of a needed car repair. Officers in unmarked vehicles went to the designated location to meet Smith on April 27, 2018. The officers pulled into the parking lot and approached Smith wearing tactical vests bearing the words "Atlanta Police Department," announced that they were APD, and instructed Smith to get on the ground. Smith's girlfriend was inside Smith's vehicle in the passenger seat. Smith attempted to flee in his vehicle, but he was blocked in. Smith exited his vehicle and attempted to "grab a gun with a sock on it"^[1] from his waistband. Smith then dropped to one knee and tossed the gun under his vehicle. After a brief struggle, the officers took Smith into custody and seized the gun.

In his defense, Smith's counsel argued that Smith did not know where the gun under his car came from and that he did not possess a gun.^[2] In support, Smith's counsel presented testimony from the AutoZone manager where Smith was arrested that the area experienced frequent crime and people often loitered and dumped items in the parking lot.

The parties stipulated that Smith had been previously convicted of a felony. The government also introduced, over Smith's objections, certified copies of Smith's prior conviction for possession of a firearm by a convicted felon, in violation of Georgia law. The district court instructed the jury that the prior conviction was not to be used to determine whether Smith was guilty of the present charged offense, and was

admitted and may be considered . . . for the limited purpose of assisting [the jury] in determining whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment, the defendant acted according to a plan or in preparation to commit a crime, or the defendant committed the acts charged in the indictment by accident or mistake.

The government then called Smith's parole and probation officer, who testified that Smith was released on parole on March 30, 2011, for his Georgia conviction for possession of a firearm by a convicted felon. After the close of the evidence, the jury found Smith guilty as charged.^[3]

Sixteen days after the guilty verdict, the Supreme Court held in Rehaif that to convict a defendant of violating § 922(g), "the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm." Rehaif v. United States, 588 U.S. ____, 139 S.Ct. 2191, 2200 (2019). Smith filed a motion for a new trial, arguing that, in light of Rehaif, a new trial was warranted because the jury was not instructed on an essential element of the offense and the evidence was insufficient to sustain his conviction. The government opposed the motion, noting that it attempted to add knowledge of Smith's felon status to the superseding indictment and introduce evidence on this point, but Smith successfully opposed its efforts-thus, inviting the error. Alternatively, the government argued that there was sufficient evidence to prove Smith knew of his felon status at the time he possessed the firearm in question.

The district court denied the motion for a new trial. It concluded that (1) "there [was] an abundance of evidence demonstrating that [Smith] was well aware of his felony status at the time he possessed a gun"-including that prior to that date, he had pleaded guilty in two cases to the charge of possession of a firearm by a convicted felon; and (2) "based on [Smith's] own argument to redact language indicating his knowledge of his felony status, the interest of justice would dictate that [he] not be permitted to now benefit from the [c]ourt's ruling in his favor."

Prior to sentencing,^[4] the United States Probation Office prepared a presentence investigation report ("PSI"), which indicated, in relevant part, that Smith was subject to the ACCA sentencing enhancement because he had at least three prior unspecified convictions for a violent felony or a serious drug offense.^[5] Smith objected to the enhancement, arguing that he did not have three qualifying violent felony convictions.

In response, the government argued that Smith had five potentially qualifying ACCA violent felony predicate convictions (all from Georgia): (1) a 1999 conviction for aggravated assault; (2) a 2009 conviction for aggravated assault with intent to rob; (3) a 2009 conviction for criminal attempt to commit armed robbery; (4) a 2010 conviction for obstruction of a law enforcement officer; and (5) a 2014 conviction for obstruction of law enforcement.

At sentencing, the district court overruled Smith's objection to the ACCA enhancement and found that Smith "based on his priors, [was] an armed...