United States v. White

• Citation: 837 F.3d 1225
• Decision Date: 21 September 2016
• Docket Number: No. 14-14044,14-14044
• Parties: United States of America, Plaintiff-Appellee, v. Nakey Demetruis White, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

837 F.3d 1225

United States of America, Plaintiff-Appellee,

v.Nakey Demetruis White, Defendant-Appellant.

No. 14-14044

United States Court of Appeals, Eleventh Circuit.

September 21, 2016

Ramona Albin, Michael B. Billingsley, John B. Felton, Joyce White Vance, U.S. Attorney's Office, Birmingham, AL, for Plaintiff-Appellee.

James Tobia Gibson, Sabra M. Barnett, Kevin L. Butler, Federal Public Defender, Birmingham, AL, Deanna Lee Oswald, Federal Public Defender—NAL, Huntsville, AL, for Defendant-Appellant.

Before MARCUS, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant pled guilty to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

. Based on his prior Alabama convictions for robbery, first-degree possession of marijuana, and trafficking in cocaine, Defendant was sentenced under the Armed Career Criminal Act (“ACCA”) to serve 180 months in prison. On appeal, Defendant argues that he should not have been sentenced under the ACCA because neither of his drug offenses is a valid ACCA predicate. Because this argument is foreclosed by controlling precedent, Defendant's sentence must be affirmed.

BACKGROUND

I. Factual Background

On September 18, 2013, officers from the Birmingham Police Department made a routine traffic stop having observed a seatbelt violation. Defendant was in the front passenger seat of the car that was stopped. The officers found a gun during the stop, and Defendant admitted the gun was his. A record check indicated that the gun was stolen, and a criminal history check revealed an outstanding warrant for Defendant's arrest, as well as numerous prior felony convictions.

II. Procedural History

Defendant pled guilty to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

. Citing Defendant's prior Alabama convictions for first-degree possession of marijuana and trafficking in cocaine,¹ the Presentence Report (“PSR”) assigned Defendant a base offense level of 24 under United States Sentencing Guidelines § 2K2.1(a)(2). Two points were added pursuant to U.S.S.G. § 2K2.1(b)(4)(A) because the gun found in Defendant's possession was stolen, resulting in an adjusted offense level of 26. Although Defendant pled guilty, the PSR did not recommend a downward adjustment for acceptance of responsibility because while on pretrial release, Defendant had been arrested on a domestic violence charge and had also provided a urine sample that reflected his use of a controlled substance.

The PSR further recommended that Defendant be sentenced as an armed career criminal under the ACCA based on his prior violent felony and drug convictions. According to the PSR, Defendant's marijuana and cocaine trafficking convictions qualified as serious drug offenses under the ACCA. Defendant also had a prior Alabama robbery conviction, which the PSR classified as a violent felony. Applying the ACCA enhancement, the PSR assigned Defendant a total offense level of 33 pursuant to U.S.S.G. § 4B1.4(b)(3)(B)

, yielding a guidelines range of 188 to 235 months and a mandatory minimum of 180 months in prison.

In written objections to the PSR, Defendant argued that a downward adjustment for acceptance of responsibility was warranted, given his guilty plea and his admission at the time of arrest to possessing the gun. Defendant also objected to the ACCA enhancement. He conceded that his robbery conviction qualified as a violent felony,² but argued that his marijuana and cocaine trafficking convictions were not serious drug offenses as defined by the ACCA. Specifically, Defendant argued that both drug offenses were defined by Alabama law to cover simple possession, and that neither of the offenses necessarily involved the manufacture or distribution of, or the intent to manufacture or distribute, a controlled substance, as required by the ACCA.

The district court sustained Defendant's objection in part as to the acceptance of responsibility issue, applied a two-level reduction, and adjusted his guidelines range accordingly. Citing controlling precedent from this Court, the district court overruled Defendant's ACCA objections and found that Defendant had three qualifying predicates, including the robbery, first-degree possession of marijuana, and cocaine trafficking convictions. The court sentenced Defendant to the mandatory minimum term of 180 months in prison, followed by five years of supervised release. Defendant argues on appeal that the district court should not have applied the ACCA enhancement because neither of his drug convictions qualified as a serious drug offense.

DISCUSSION

I. Standard of Review

We review de novo whether a conviction qualifies as a serious drug offense under the ACCA. United States v. Robinson , 583 F.3d 1292, 1294 (11th Cir. 2009)

. In conducting our review, “we are bound to follow a prior binding precedent ‘unless and until it is overruled by this court en banc or by the Supreme Court.’ ” United States v. Vega

–

Castillo , 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States v. Brown , 342 F.3d 1245, 1246 (11th Cir. 2003) ).

II. The ACCA

The ACCA mandates a 15-year minimum sentence for a defendant who has three prior convictions for a violent felony or a serious drug offense and who is convicted of violating 18 U.S.C. § 922(g)

. 18 U.S.C. § 924(e)(1). The term “serious drug offense” is defined by the ACCA to include “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.” 18 U.S.C. § 924(e)(2)(A)(ii).

In determining whether a state conviction qualifies as a predicate under the ACCA, we follow what is described as a “categorical approach.” Robinson , 583 F.3d at 1295

. Under this approach, we are concerned only with the fact of the conviction and the statutory definition of the offense, rather than with the particular facts of the defendant's crime. Id. As applied to this case, the categorical approach requires us to determine whether first-degree possession of marijuana and cocaine trafficking, as those crimes are defined by Alabama law, fall within the definition of a serious drug offense set forth in the ACCA. See

United States v. Smith , 775 F.3d 1262, 1267 (11th Cir. 2014) (explaining that we look to the plain language of the ACCA's definition of the term “serious drug offense” to determine the elements of such an offense), cert. denied , ––– U.S. ––––, 135 S.Ct. 2827, 192 L.Ed.2d 864 (2015).

When a statute covers some conduct that falls within, and other conduct that is broader than, a predicate offense as defined by the ACCA and when that statute is divisible,³ we may use a modified categorical approach to determine whether a defendant's prior conviction qualifies. See Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281–82, 186 L.Ed.2d 438 (2013)

. Under the modified categorical approach, we look to a limited class of documents, such as the indictment and jury instructions, to determine which alternative element was the basis of the defendant's conviction. Id. at 2281. We then consider whether that element is encompassed by the ACCA predicate offense. Id.

III. Defendant's Marijuana Conviction

Section 13A–12–213(a) of the Alabama Code

provides that a person is guilty of first-degree possession of marijuana if:

(1) He or she possesses marihuana for other than personal use; or

(2) He or she possesses marihuana for his or her personal use only after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his or her personal use only.

Ala. Code § 13A–12–213(a)

.⁴ It is undisputed that Defendant was convicted of first-degree possession of marijuana “for other than personal use” under § 13A–12–213(a)(1).⁵ Defendant concedes that the conviction meets the ACCA's requirement that it be punishable by a maximum term of at least ten years.⁶ But he argues that it is not a serious drug offense because the Alabama statute does not expressly require “manufacturing, distributing, or possessing with intent” to do either. See 18 U.S.C. § 924(e)(2)(A)(ii)

.

We rejected Defendant's argument in United States v. Robinson , 583 F.3d 1292, 1296–97 (11th Cir. 2009)

. As we explained in Robinson, possession of marijuana “for someone else's use” necessarily involves possession “with the intent to distribute” it to another person. Id. at 1296. See also 21 U.S.C. § 802(11) (defining the term “distribute” for purposes of federal drug laws to mean “deliver”). Consequently, we held that a conviction for possession of marijuana for other than personal use under § 13A–12–213(a)(1) qualifies as a serious drug offense under the ACCA. Id. at 1296–97.

Defendant argues that Robinson

is wrong and that the conduct made criminal by § 13A–12–213(a)(1) falls outside of the ACCA's definition of a serious drug offense because, in theory, a person could violate the statute by jointly possessing marijuana with another person or by possessing it with intent to administer or dispense it, rather than with intent to distribute it. Defendant, however, does not explain why jointly possessing marijuana “for other than personal use” would not also necessarily involve an intent to distribute or deliver it to another person. As to his argument that an individual could violate the statute by possessing marijuana with intent to administer or dispense it, he does not cite any authority to suggest that § 13A–12–213(a)(1) has ever been applied in this hypothetical situation. See

Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013) (“[T]here must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’ ” (quoting Gonzalez v. Duenas

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Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d...