United States v. Charles Brown, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 4, 2025
• Docket: 22-10485
• Status: Unpublished

Opinion

USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 1 of 11

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-10485 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHARLES BROWN, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:21-cr-80004-AMC-1 ____________________ USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 2 of 11

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Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: Charles Brown Jr. appeals his sentence for one count of pos- session with intent to distribute heroin and one count of possession with intent to distribute fentanyl. We find that the district court did not plainly err in imposing a 262-month sentence. I. BACKGROUND Mr. Brown was arrested and charged with possession of her- oin with intent to distribute and possession of fentanyl with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The government sought an enhanced sentence pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 851 (“the § 851 enhancement”). It filed a “Notice of Previous Conviction Information” pursuant to § 851 stating that it intended to rely on four prior Florida cases, contain- ing a total of nine prior drug convictions, including the following: Crime: Attempted Trafficking in Heroin (14g-28g) Possession of Cocaine with Intent to Sell Date: December 12, 2019 Jurisdiction: Palm Beach County, Fifteenth Judicial Circuit Case No. 2019-CF002094A

Crime: Attempted Trafficking in Heroin (4g-14g) Possession of Cocaine Attempted Trafficking in Fentanyl Date: December 12, 2019 Jurisdiction: Palm Beach County, Fifteenth Judicial Circuit USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 3 of 11

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Case No. 2019-CF007905A

Crime: Deliver Cocaine Deliver M.D.P.V. Date: December 10, 2012 Jurisdiction: Broward Count, Seventeenth Judicial Circuit Case No. 2011-CF013907A

Crime: Sale of Cocaine within 1,000 feet of a place of worship Possession of Cocaine with Intent to Sell Date: June 28, 2005 Jurisdiction: Palm Beach County, Fifteenth Judicial Circuit Case No. 2004-CF06883A D.E. 24. On the first day of trial, Mr. Brown changed his plea to guilty for both narcotics charges. During the plea colloquy, Mr. Brown asked: “[W]ould I be able to appeal the sentence if they give me a sentence over?” to which the court replied “Yes. Your appellate rights are what they are, sir[.]” D.E. 107 at 155. Prior to sentencing, the probation office prepared a presen- tence investigation report stating that Mr. Brown qualified as a ca- reer offender because he had “at least two prior felony convictions of a controlled substance offense or crime violence[.]” The proba- tion office determined that Mr. Brown’s advisory guideline range was 262 to 327 months’ imprisonment, to be followed by a super- vised release term of six years to life. USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 4 of 11

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Mr. Brown filed written objections to the presentence inves- tigation report that included his objections to the government’s § 851 notice. As relevant to this appeal, he objected to the § 851 en- hancement on the ground that his prior convictions were the prod- uct of ineffective assistance of counsel, but did not raise objections regarding the validity of the predicate offenses for the § 851 en- hancement or the career offender enhancement. At sentencing, Mr. Brown’s counsel stated that he was no longer pursuing these objections. The district court sentenced Mr. Brown to 262 months’ im- prisonment, followed by six years of supervised release. Mr. Brown appeals his sentence, arguing that (1) the district court failed to fol- low the mandatory 21 U.S.C. § 851 procedure for imposing an en- hancement, and this was not harmless error because his previous convictions do not qualify as predicates; and (2) the district court erred in imposing the career offender enhancement because the government failed to establish two past offenses that qualify as predicates. II. THE § 851 ENHANCEMENT Mr. Brown argues that the district court erred in applying the § 851 sentence enhancement because his prior convictions do not qualify as valid “felony drug offenses.” Because Mr. Brown did not make this argument below, our review is for plain error. See United States v. DiFalco, 837 F.3d 1207, 1220 (11th Cir. 2016). A “felony drug offense” is defined as “an offense that is pun- ishable by imprisonment for more than one year under any law of USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 5 of 11

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the United States or of a State or foreign county that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Only one prior felony drug offense is required for an en- hancement to be imposed pursuant to 21 U.S.C. § 841(b)(1)(C). A. VALID PREDICATE OFFENSE Mr. Brown first argues that his 2005 and 2012 cocaine-related convictions are not “felony drug offenses” because, at the time of those convictions, both the federal government and Florida in- cluded iofluplane I in their definition of “cocaine”—a substance which has since been removed from both definitions. To deter- mine whether a prior conviction serves as a valid predicate for an enhancement, we apply a categorical approach, “looking only to the statutory definitions of the prior offenses, and not to the par- ticular facts underlying those convictions.” Taylor v. United States, 495 U.S. 575, 600 (1990). Mr. Brown contends that under this cate- gorical approach, his prior convictions must be presumed to have involved only iofluplane I, and therefore no longer constitute “fel- ony drug offenses.” We recently addressed a similar issue in the context of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which provides a sentence enhancement for defendants who have previ- ously committed “serious drug offenses.” See United States v. Jack- son, 55 F.4th 846 (11th Cir. 2022). We held that a court must look to whether, at the time of the previous conviction, the offense would have served as a predicate. See id. at 858. The Supreme USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 6 of 11

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Court later affirmed this backward-looking approach. See Brown v. United States, 602 U.S. 101, 111–15 (2024). Although the § 851 enhancement involves a different term— “felony drug offenses”—we see no reason not to apply the same backward-looking approach here. Compare 21 U.S.C. § 802(44) with 18 U.S.C. § 924(e)(2)(A)(ii). Mr. Brown’s two cocaine offenses—re- gardless of whether they involved iofluplane I—constituted “felony drug offenses” at the time of the convictions. That is because io- fluplane I was removed as part of the definition of cocaine only after Mr. Brown’s convictions. As a result, the 2005 and 2012 con- victions still qualify for the purposes of a § 851 enhancement. Next, Mr. Brown argues that the 2019, 2018, 2012, and 2005 cocaine convictions are not valid predicate offenses because the Florida definition of “narcotic drugs”—a term included in the def- inition of “felony drug conviction”—is broader than federal defini- tion of “narcotic drugs.” The federal government defines “narcotic drugs” to include “cocaine, its salts, optical and geometric isomers, and salts of isomers.” 21 U.S.C. § 802(17)(D) (emphasis added). Florida defines schedule II drugs to include “[c]ocaine or ecgonine, includ- ing any of their stereoisomers[.]” Fla. Stat. § 893.03(2)(a)(4) (emphasis added). Mr. Brown contends that the Florida definition is broader than the federal definition because it includes nongeometric dia- stereomers of cocaine. Although the government bears the burden of proving that a § 851 enhancement applies, see United States v. Lee, 586 F.3d 859, 866 (11th Cir. 2009), Mr. Brown did not contest at sentencing USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 7 of 11

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whether his prior convictions were “serious drug offenses.” That means we review only for plain error. See United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). Mr. Brown “has identified no precedent that would make it obvious or clear under current law that the Florida definition of cocaine is overbroad.” United States v. Laines, 69 F.4th 1221, 1234 (11th Cir. 2023) (internal quotation marks omitted) (citing United States v. Candelario, 240 F.3d 1300, 1309 (11th Cir. 2001)). And in the past, we have expressed doubt as to whether cocaine has any nongeometric diastereomers. See Chamu v. U.S. Att’y Gen., 23 F.4th 1325, 1331 (11th Cir. 2022). Because either one of Mr. Brown’s past cocaine convictions would serve as a valid predicate for a § 851 enhancement, we need not address Mr. Brown’s arguments regarding his M.D.P.V. convic- tion or his claims of ineffective counsel regarding his 2018 and 2019 convictions. B. COMPLIANCE WITH THE § 851 PROCEDURE In addition to challenging the existence of a valid predicate offense, Mr. Brown argues that the court failed to follow manda- tory procedures for imposing the enhancement. Prior to the impo- sition of an enhancement under § 841(b)(1)(C), (a) the government must “file an information with the court . . . stating in writing the previous convictions to be relied upon”; (b) the court must, “after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and . . . inform him that any challenge to a prior USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 8 of 11

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conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence”; and (c) if the defendant files a written response challenging allegations in the information or the validity of any of the listed convictions, “[t]he court shall hold a hearing[.]” 21 U.S.C. § 851(c)(1). Mr. Brown first contends that the information filed by the government failed to “signal unambiguously the government's in- tent to seek an enhancement based on a particular prior convic- tion” because it listed multiple convictions. See Appellant’s Cor- rected Br. at 20 (quoting Perez v. United States, 249 F.3d 1261, 1267 (11th Cir. 2001)). Again, we review for plain error. And the fact that the government listed multiple prior convictions, each of which would serve as a valid predicate for the enhancement, does not impact the effectiveness of the information in fulfilling the re- quirements of § 851(a). Mr. Brown next asserts that the district court failed to con- duct a colloquy inquiring as to whether he affirmed or denied the underlying convictions and advising him that he would not be able to challenge prior convictions after receiving a sentence, in viola- tion of § 851(b). Failure to conduct a colloquy “can result in very real prejudice to a defendant who learns only after he attempts to challenge the prior conviction that that conviction has become un- assailable.” United States v. Cevallos, 538 F.2d 1122, 1128 (5th Cir. 1976). This is of particular concern where, as here, the district court previously suggested to Mr. Brown that he would be able to appeal his sentence if he received “a sentence over.” USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 9 of 11

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But we have held that a court’s failure to conduct the § 851(b) colloquy constituted harmless error where the predicate convictions were over five years old (meaning that the defendant is barred under § 851(e) from challenging their validity). See United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir. 1990). See also United States v. James, 642 F.3d 1333, 1339–40 (11th Cir. 2011). We have already determined that at least two of Mr. Brown’s prior convic- tions are valid predicates, and these two convictions are over five years old. So the failure to conduct a colloquy constituted harmless error. Finally, Mr. Brown argues that the district court failed to hold a separate hearing to address his response to the information in violation of § 851(c). But the district court did conduct a sen- tencing hearing at which it inquired about Mr. Brown’s written ob- jections. Mr. Brown does not cite any statutory language or prece- dent suggesting that § 851(c) requires a separate hearing, and we cannot say that the court plainly erred in failing to hold one. See United States v. Woodyard, 349 Fed.Appx. 518, 521 n.2 (11th Cir. 2009) (concluding that holding a defendant’s § 851 hearing at the begin- ning of his sentencing hearing does not constitute a plain error); United States v. Rodriguez, 851 F.3d 931, 947 n.4 (9th Cir. 2017) (hold- ing that an § 851 hearing can be held directly prior to sentencing); United States v. Arreola-Castillo, 539 F.3d 700, 704–05 (7th Cir. 2008) (finding that the § 851(c) hearing requirement was satisfied by the sentencing hearing). We therefore affirm Mr. Brown’s § 851 enhancement. USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 10 of 11

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III. CAREER OFFENDER ENHANCEMENT Mr. Brown also objects to the career offender enhancement. Our review is for plain error because Mr. Brown did not lodge this objection below. See DiFalco, 837 F.3d at 1220. The Sentencing Guidelines impose this enhancement on certain defendants who “ha[ve] at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). In the presentence investigation report, the probation office listed three cases containing five convictions that it identified as predicates: (1) a December 12, 2019 conviction for Count Two, Possession of Cocaine with Intent to Sell; (2) a Decem- ber 10, 2012 conviction for Count One, Delivery of Cocaine and Count Two, Delivery of 3, 4, M.D.P.V.; and (3) a June 28, 2005 con- viction for two counts of aggravated assault with a firearm. Mr. Brown does not deny that the 2019 cocaine conviction constitutes a “controlled substance offense.” As for his 2005 aggra- vated assault conviction, Mr. Brown initially argued in his brief that aggravated assault is not a “crime of violence” because it is a gen- eral intent crime. While the appeal was pending, we reaffirmed a previous decision that Florida aggravated assault qualifies as a pred- icate under the ACCA’s “violent felony” clause, which is nearly identical to U.S.S.G. § 4B1.2’s “crime of violence” clause. See Somers v. United States, 66 F.4th 890, 896 (11th Cir. 2023). See also Somers v. United States, 355 So. 3d 890, 892 (Fla. 2022) (addressing a certified question from the Eleventh Circuit and holding that assault under Florida law requires a mens rea of at least knowing conduct, and USCA11 Case: 22-10485 Document: 59-1 Date Filed: 04/04/2025 Page: 11 of 11

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that it is not a general intent crime because it cannot be committed recklessly); Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1338 (11th Cir. 2013) (holding that a Florida aggravated assault con- viction “qualifies as a violent felony for purposes of the ACCA”),� abrogated on other grounds by Johnson v. United States, 576 U.S. 591 (2015); United States v. Golden, 854 F.3d 1256, 1256–57 (11th Cir. 2017) (holding that Florida aggravated assault constitutes a “crime of violence” under § 4B1.2). Following Somers, Mr. Brown con- ceded that Somers foreclosed his challenge to the district court’s re- liance on his 2005 Florida aggravated assault convictions in apply- ing the career offender enhancement. Mr. Brown maintains that Somers was incorrectly decided. But we are bound by this court’s prior precedent. See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001). Mr. Brown’s 2019 cocaine conviction, together with his 2005 conviction for two counts of aggravated assault, provide the two requisite prior felony convictions required for the career offender enhancement. We therefore need not address the arguments re- garding the 2012 M.D.P.V. and cocaine-related convictions. IV. CONCLUSION We affirm Mr. Brown’s sentence. AFFIRMED.