United States v. Bryan Shamar Little

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 17, 2019
• Docket: 18-13611
• Status: Unpublished

Opinion

Case: 18-13611 Date Filed: 06/17/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13611 Non-Argument Calendar ________________________

D.C. Docket No. 3:17-cr-00015-CAR-CHW-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRYAN SHAMAR LITTLE,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(June 17, 2019)

Before WILSON, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-13611 Date Filed: 06/17/2019 Page: 2 of 4

Bryan Little pleaded guilty to possession of a firearm by a convicted felon

under 18 U.S.C. §§ 922(g)(1) and 924(e). The district court sentenced him to 180-

months’ imprisonment. The sentence included an enhancement for Little’s prior

Georgia convictions for possession of cocaine with intent to distribute. Little now

appeals, arguing that his prior convictions do not qualify as controlled substances

offenses under the Armed Career Criminal Act (ACCA) or the United States

Sentencing Guidelines. We disagree and affirm.

We review de novo a question of law under the Sentencing Guidelines.

United States v. Smith, 54 F.3d 690, 691 (11th Cir. 1995). We also review de novo

whether a prior conviction qualifies as a controlled substance offense under the

Guidelines. United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017).

A defendant is a career offender under the Guidelines if he has at least two

prior felony convictions for either a crime of violence or a controlled substance

offense. U.S.S.G. § 4B1.1(a). The Guidelines define a controlled substance

offense as:

[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b). To determine whether the predicate offense “prohibits” the

listed activities, we apply the categorical approach and compare “the definition in 2 Case: 18-13611 Date Filed: 06/17/2019 Page: 3 of 4

the Guidelines with the statutory offense, not the conduct underlying the

conviction.” Lange, 862 F.3d at 1293 (quotations omitted). When the Guidelines

provide a definition for predicate offenses, we compare “the elements of the crime

of conviction to the generic form of the offense as defined by the States.” United

States v. Lockley, 632 F.3d 1238, 1242 (11th Cir. 2011) (emphasis added).

Little first argues that his prior convictions cannot qualify as controlled

substance offenses because they might rest on the theory that he was a “party to the

crime” under O.C.G.A. § 16-2-20. But he was not charged, let alone convicted,

under O.C.G.A. § 16-2-20. Little’s prior convictions were for possession of

cocaine with intent to distribute under O.C.G.A. § 16-13-30(b), which makes it

unlawful to “manufacture, distribute, dispense, administer, sell, or possess with

intent to distribute any controlled substance.” Because Georgia’s party to a crime

statute was not Little’s “crime of conviction,” we decline to look beyond

O.C.G.A. § 16-13-30(b)—the statute under which Little was convicted.

Little next argues that inchoate crimes like Georgia’s party to a crime

offense do not qualify as controlled substance offenses. Little contends that

Application Note 1 to U.S.S.G. § 4B1.2(b), which includes aiding and abetting in

the definition of controlled substance offenses, is inconsistent with the Guidelines.

But we rejected this exact argument in United States v. Smith, 54 F.3d 690, 693

(11th Cir. 1995). In Smith, we held that Guidelines commentary is “authoritative

3 Case: 18-13611 Date Filed: 06/17/2019 Page: 4 of 4

unless it violates the Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.” 54 F.3d at 693. We concluded

Application Note 1 of § 4B1.2 “does not run afoul of the Constitution . . . nor is it

inconsistent with, or a plainly erroneous reading of, sections 4B1.1 or 4B1.2.” Id.

Application Note 1 thus “constitutes a binding interpretation.” Id. (quotations

omitted). Smith forecloses Little’s argument to the contrary. See United States v.

Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (explaining under the prior

precedent rule, we are bound by “a prior binding precedent unless and until it is

overruled by this Court en banc or by the Supreme Court” (quotation mark

omitted)).

Because Little makes no argument that O.C.G.A. § 16-13-30(b) does not

otherwise qualify as a controlled substance offense, the district court did not err in

using Little’s prior convictions to enhance his sentence. Accordingly, we affirm.

AFFIRMED.