USA v. Herman Smith

Filing

Opinion issued by court as to Appellant Herman Smith. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 06/12/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15403
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00437-JSM-TBM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMAN SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 12, 2017)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:

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Herman Smith appeals his conviction and Armed Career Criminal Act
(“ACCA”) enhanced sentence for possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). We address each of his arguments in turn.
I.
On appeal, Smith first argues the government failed to prove that he
committed three qualifying offenses on different occasions. Additionally, he
contends that the Supreme Court’s decisions in Mathis v. United States, 136 S. Ct.
2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013), abrogated
our decision in United States v. Weeks, 711 F.3d 1255, 1260 (11th Cir. 2013),
which would otherwise foreclose his argument.
We generally review constitutional challenges to a sentence de novo. United
States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). Under the ACCA, a defendant
convicted under 18 U.S.C. § 922(g) is subject to a mandatory minimum sentence
of 15 years’ imprisonment if he possesses three prior convictions for a violent
felony or serious drug offense “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1).
To prove that the prior offenses occurred on different occasions, the
government must use only those documents approved in Shepard v. United States,
544 U.S. 13 (2005), such as the charging documents, plea agreements and
colloquies, jury instructions, and other comparable judicial records. United States
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v. Sneed, 600 F.3d 1326, 1332–33 (11th Cir. 2010). We previously held that
district courts may determine the factual nature of prior convictions, including
whether they were committed on different occasions, so long as they limit
themselves to Shepard-approved sources. Weeks, 711 F.3d at 1260.
Under the prior panel precedent rule, subsequent panels are bound by the
holding of a prior panel until it is overruled or undermined to the point of
abrogation by a decision of the Supreme Court or of our Court sitting en banc.
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The intervening
decision “must be clearly on point.” Id.
In both Descamps and Mathis, the Supreme Court examined the question of
when sentencing courts may apply the “modified categorical approach” to
determine if a crime qualifies as an ACCA violent felony, given that the
“elements” of a crime must be proven beyond a reasonable doubt. Mathis, 136 S.
Ct. at 2243; Descamps, 133 S. Ct. at 2276.
Neither Descamps nor Mathis is “clearly on point,” as neither case addressed
whether the dates of prior convictions need to be proven beyond a reasonable
doubt to sustain a conclusion that previous convictions occurred on different
occasions; thus, they did not overrule or undermine Weeks to the point of
abrogation. See Mathis, 136 S. Ct. at 2248–54; Descamps, 133 S. Ct. at 2282–93;
Archer, 531 F.3d at 1352. Therefore, Weeks forecloses Smith’s argument in the
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instant appeal. See Weeks, 711 F.3d at 1260. Accordingly, the district court did
not err by concluding that Smith committed three previous felonies on different
occasions.
II.
Smith next argues that his prior Florida convictions under Fla. Stat. § 893.13
did not qualify as serious drug offenses for purposes of the ACCA because the
Florida statute does not include a mens rea element. For the first time on appeal,
he also challenges whether his 2002 and 2009 convictions qualified as serious drug
offenses because the Florida charging documents provided alternative means by
which Smith could have committed the offenses.
We review de novo whether a prior conviction is a serious drug offense
within the meaning of the ACCA. United States v. Wilkerson, 286 F.3d 1324,
1325 (11th Cir. 2002). However, we review for plain error sentencing issues not
raised in the district court. United States v. Jones, 743 F.3d 826, 828 (11th Cir.
2014). A general objection is insufficient to preserve specific sentencing issues for
review. United States v. Carpenter, 803 F.3d 1224, 1237-38 (11th Cir. 2015).
Thus, we review for plain error new arguments on appeal that were not raised
before the district court, even though the arguments support an objection raised in
the district court. See Weeks, 711 F.3d at 1261. No plain error exists where

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precedent from the Supreme Court or our Court fails to directly resolve an issue.
Id.
The ACCA broadly defines a serious drug offense to include any offense
involving the manufacture, distribution, or possession with intent to manufacture
or distribute drugs. 18 U.S.C. § 924(e)(2)(A)(ii); United States v. White, 837 F.3d
1225, 1233 (11th Cir. 2016). We previously held that convictions under Fla. Stat.
§ 893.13(1) qualify as serious drug offenses pursuant to the ACCA, despite the
Florida statute’s lack of a mens rea element. United States v. Smith, 775 F.3d
1262, 1266–68 (11th Cir. 2014)
Here, Smith’s argument is directly foreclosed by our decision in Smith.
775 F.3d at 1266–68. In addition, the district court did not plainly err in
determining that Smith’s 2002 and 2009 convictions qualify as serious drug
offenses, because Smith failed to show any precedent from the Supreme Court or
our Court establishing that they do not qualify. See Weeks, 711 F.3d at 1261.
III.
Smith further argues that his ACCA-enhanced sentence above the
otherwise-applicable statutory maximum violated his Fifth and Sixth Amendment
rights because his prior convictions were not charged in an indictment and proven
to a jury beyond a reasonable doubt.

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In Almendarez-Torres v. United States, the Supreme Court held that the
government need not allege in its indictment or prove beyond a reasonable doubt
that a defendant had prior convictions in order for a sentencing court to use those
convictions for purposes of enhancing a sentence. 523 U.S. 224, 226–27 (1998).
We “consistently held” that district courts may determine both the existence of prior
convictions and the factual nature of those convictions. Weeks, 711 F.3d at 1259.
Here, our decision in Weeks directly forecloses Smith’s argument. Weeks
dictates that a failure to include facts of a defendant’s prior convictions and prove
them at trial for purposes of an ACCA enhancement does not violate the Fifth and
Sixth Amendments. See Weeks, 711 F.3d at 1259. Thus, there was no error, plain
or otherwise, regarding the constitutionality of Smith’s ACCA enhancement under
the Fifth and Sixth Amendments.
IV.
Smith also argues that we should vacate his conviction because § 922(g)(1)
is unconstitutional, both facially and as applied to him, because the statute exceeds
Congress’s authority under the Commerce Clause.
We typically review the constitutionality of a federal statute de novo. United
States v. Jackson, 111 F.3d 101, 101 (11th Cir. 1997). However, constitutional
objections that were not raised before the district court are reviewed only for plain
error. United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). A failure
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to object to allegations of fact in a presentence investigation report admits those
facts for sentencing purposes. United States v. Patterson, 595 F.3d 1324, 1326
(11th Cir. 2010).
We repeatedly held that the express jurisdictional element in 18 U.S.C.
§ 922(g) defeated constitutional challenges to the statute under the Commerce
Clause. See, e.g., United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011)
(holding that § 922(g) is not unconstitutional as applied to “a defendant who
possessed a firearm only intrastate” when the government demonstrated that the
firearm moved in interstate commerce); United States v. Scott, 263 F.3d 1270,
1273 (11th Cir. 2001) (holding that “the jurisdictional element of the statute, i.e.,
the requirement that the felon ‘possess in or affecting commerce, any firearm or
ammunition,’ immunizes § 922(g)(1) from [a] facial constitutional attack”); United
States v. McAllister, 77 F.3d 387, 389–90 (11th Cir. 1996) (holding that, even in
the wake of United States v. Lopez, 514 U.S. 549 (1995), as long as the firearm in
question has a “minimal nexus” to interstate commerce, § 922(g) is constitutional
as applied).
Here, Smith’s facial challenge to the constitutionality of § 922(g)(1) is
foreclosed by our precedent. See Scott, 263 F.3d at 1273. Furthermore, the
government established the minimal nexus between Smith’s firearm and interstate
commerce necessary to survive an as-applied challenge, as Smith did not object to
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the facts in his PSI, including the statement that the gun was manufactured in
Massachusetts and the ammunition was manufactured in Illinois and Brazil. See
Jordan, 635 F.3d at 1189.
Accordingly, we affirm Smith’s conviction and sentence.
AFFIRMED.

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