USA v. Jeremel Smith

Filing

Opinion issued by court as to Appellant Jeremel Remymartin 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.

Case: 16-17661

Date Filed: 06/08/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17661
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20489-WPD-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMEL REMYMARTIN SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 8, 2017)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Jeremel Remymartin Smith appeals his conviction for being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).
After careful review, we affirm.
I.
On the night of December 18, 2015, City of Miami Police Officers DeWitt
and Bernal were dispatched to a house to respond to a domestic dispute. When
they arrived, the officers saw a man standing next to a parked car outside of the
house. Upon seeing the police officers, the man ran inside the house. Officer
Bernal went after him. Meanwhile, Officer DeWitt approached the parked car after
hearing “loud music” coming from inside of it.
Officer DeWitt saw that someone was inside the car using a cell phone. It
was Smith. Because the car’s side windows were tinted, Officer DeWitt walked in
front of the car in order to see through the untinted windshield. He then saw Smith
was sitting next to an open beer and a gun, both of which were resting on the car’s
center console. After seeing the gun in the car with Smith, Officer DeWitt drew
his own gun and yelled for Officer Bernal to join him. Officer Bernal knocked on
the car’s window in order to get Smith’s attention, and ordered him to step out of
the car with his hands up. Smith, apparently, had not realized the officers were
there. The knock on the window startled him, but he immediately regained his
composure and put his hands up, stepped out of the car, and placed his hands on
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the car’s roof. Officer Bernal then patted Smith down and found a holster in his
waistband. The officers arrested Smith after determining he was a convicted felon
and read him his Miranda rights. Smith then told the officers he had the gun
because “his mother got jumped, and he carrie[d] it for protection.” Upon seizing
the gun, the officers found it had one round in the chamber.
Smith was charged with being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1). The jury convicted him after a
two-day trial. During deliberations, the jury sent the district court a note asking for
clarification on what “actual possession” meant and if it required Smith to have
actually held the gun. Both parties had earlier agreed to the Eleventh Circuit
Pattern Instruction on possessing a firearm, which explains several types of
possession including actual possession, constructive possession, sole possession,
and joint possession. Neither party objected after the court read that instruction.
After receiving the jury’s note, both parties agreed the jury must rely on the given
instruction. After they agreed, the district court responded to the jury, saying:
“Please rely on the jury instructions that you have a copy of.”
The Presentence Investigation Report (“PSR”) recommended a guidelines
range of 100 to 125 months. Smith made a number of objections to the PSR,
including the argument that his earlier Florida robbery conviction for purse
snatching did not qualify as a “crime of violence” for the purposes of United States
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Sentencing Guidelines (“USSG”) § 2K2.1(a)(2). The district court overruled
Smith’s objection but agreed that the PSR “overrepresent[ed]” his criminal history.
The district court therefore calculated his guideline range using Category V instead
of Category VI, resulting in a range of 92 to 115 months imprisonment. The court
sentenced Smith to 100-months imprisonment. This appeal followed.
II.
Smith first argues the district court erred in giving the jury an instruction
about “actual possession” because, on the facts of this case, it was not possible for
him to have actually possessed the gun found in the car. Ordinarily, we review de
novo any challenge to the jury’s instructions. United States v. Felts, 579 F.3d
1341, 1342 (11th Cir. 2009) (per curiam). However, the record shows Smith
agreed to the district court’s proposed instructions. This Court has held “where a
defendant agrees to the court’s proposed instructions, the doctrine of invited error
applies.” United States v. Carter, 776 F.3d 1309, 1323 (11th Cir. 2015) (quotation
omitted). That means “review is waived even if plain error would result.” Id.
(quotation omitted). We therefore must affirm the district court.
III.
Smith also objects to the categorization of his earlier Florida robbery
conviction as a “crime of violence” under USSG § 2K2.1(a)(2). He concedes this
Court’s precedent in United States v. Fritts, 841 F.3d 937 (11th Cir. 2016), and
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United States v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016), precludes any relief
on this claim, but wishes to preserve his objection in case the Supreme Court
grants the pending petitions for certiorari in either of these two cases. We note his
objection for the record.
AFFIRMED.

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