United States v. Dallas Jerome Wims

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 1, 2020
• Docket: 19-13677
• Status: Unpublished

Opinion

USCA11 Case: 19-13677 Date Filed: 12/01/2020 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13677 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-20722-KMW-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DALLAS JEROME WIMS,

Defendant - Appellant. ________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(December 1, 2020)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

Dallas Wims appeals his sentence of 15-years’ imprisonment for possession

of a firearm and ammunition by a convicted felon in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e)(1). Mr. Wims raises two issues on appeal. First, he asserts

that the limitations accompanying the First Step Act’s creation of the term “serious USCA11 Case: 19-13677 Date Filed: 12/01/2020 Page: 2 of 7

drug felony” for sentencing enhancements under the CSA apply also to his ACCA

predicate offenses. Second, he argues that his 15-year sentence under the ACCA

violates the Eighth Amendment. After a review of the record and the parties’ briefs,

we affirm the district court’s sentence.1

I

In his appeal, the parties’ dispute centers around the interpretation of three

statutes: the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e); the

Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq.; and the First Step Act

of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) (“First Step Act”). We

summarize the relevant statutes below.

The ACCA provides for sentence enhancements for certain felons who are in

unlawful possession of a firearm. Under the ACCA, a defendant convicted of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), faces a

mandatory minimum 15-year sentence if he has three or more prior convictions for

a “violent felony” and/or “serious drug offense.” See 18 U.S.C. § 924(e)(1). Those

offenses, commonly referred to as predicate offenses, are defined in 18 U.S.C. §

924(e)(2). The district court enhanced Mr. Wims’ sentence under the ACCA.

The CSA regulates certain substances under federal law, in part by

establishing drug offenses and sentencing enhancements. For example, prior to the

1 As we write for the parties, we set out only what is necessary to address Mr. Wims’ arguments. 2 USCA11 Case: 19-13677 Date Filed: 12/01/2020 Page: 3 of 7

promulgation of the First Step Act, under the CSA a person convicted of distributing

280 grams of crack cocaine was subject to a mandatory minimum sentence of 20

years if he had been previously convicted of committing a “felony drug offense.”

See 21 U.S.C. §§ 841(a), (b)(1)(A) (2012). That prior version of the CSA defined

the term “felony drug offense” as “an offense that is punishable by imprisonment for

more than one year under any law of the United States or of a State . . . that prohibits

or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or

depressant or stimulant substances.” 21 U.S.C. § 802(44) (2012). Mr. Wims was not

convicted of violating, nor was his sentence enhanced under, the CSA.

In 2018, Congress enacted the First Step Act with the goal of reforming the

nation’s prison and sentencing systems. As relevant here, § 401 of the First Step Act

amended the CSA to replace the term “felony drug offense” with the term “serious

drug felony.” See First Step Act § 401(a). See also 21 U.S.C. §§ 802(57),

841(b)(1)(A). Under the amended version of the CSA, an offense constitutes a

“serious drug felony” if it meets three elements. The first element is a foundational

one, defining a “serious drug felony” as an offense described in 18 U.S.C §

924(e)(2)—the provision that defines the ACCA’s predicate offenses. See 21 U.S.C.

§ 802(57); 18 U.S.C. § 924(e)(2). The latter two elements are limiting elements. For

an offense to constitute a “serious drug felony,” the offender must have (i) served a

term of imprisonment of over a year, and (ii) been released from imprisonment no

3 USCA11 Case: 19-13677 Date Filed: 12/01/2020 Page: 4 of 7

more than 15 years prior to the commencement of the instant offense. See 21 U.S.C.

§ 802(57). Theoretically, these limiting elements make the application of the CSA’s

sentencing enhancements less likely.

II

Mr. Wims pled guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(e). In his

plea agreement, Mr. Wims stipulated that the district court was required to impose a

statutory minimum 15-year term under the ACCA. The district court accordingly

applied the ACCA enhancement and sentenced him to that statutory minimum, based

on his prior predicate convictions.

Mr. Wims first argues that because the foundational element of the term

“serious drug felony” in the CSA is a reference to the ACCA’s predicate offenses,

we should read § 401 of First Step Act as having incorporated the two limiting

elements of the term “serious drug felony” into the definition of the ACCA predicate

offenses. According to Mr. Wims, because his ACCA predicate offenses do not meet

either of the two limiting elements, his sentence should not have been enhanced

under the ACCA. We disagree.

We review the district court’s interpretation of a statute de novo. See United

States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012). The starting point

of statutory interpretation is “the language of the statute itself,” and we consider the

specific context in which the language at issue is used and the broader context of the

4 USCA11 Case: 19-13677 Date Filed: 12/01/2020 Page: 5 of 7

statute. Id. (internal quotation marks omitted). And “[i]f this analysis reveals that the

provision has a plain and unambiguous meaning with regard to the particular dispute

in the case and the statutory scheme is coherent and consistent, then the inquiry is

complete.” Id. (internal quotation marks omitted).

Mr. Wims’ arguments are based solely on policy and lack any analysis of the

text of the relevant statutes. And that text is clear: § 401 of the First Step Act replaced

the term “felony drug offense” with the term “serious drug felony” in the CSA, see

First Step Act § 401(a), and left untouched the definitions of the ACCA’s predicate

offenses. Compare 18 U.S.C § 924(e)(2) (2012) with 18 U.S.C § 924(e)(2). Both we

and the Fourth Circuit have already so held. See United States v. Smith, 798 Fed.

Appx. 473, 476 (11th Cir. 2020); United States v. Edwards, 767 Fed. Appx. 546,

546–47 (4th Cir. 2019).

Smith is an unpublished opinion, but we agree with it. Because the First Step

Act does not change the definition of the ACCA’s predicate offenses, we affirm the

district court on this issue.2

III

Mr. Wims argues that his ACCA sentencing enhancement violates the Eight

2 Mr. Wims also argues that we should apply the rule of lenity when construing the First Step Act. But the relevant provisions of the First Step Act, the CSA, and the ACCA are clear and unambiguous. Accordingly, the rule of lenity is inapplicable. See United States v. Phifer, 909 F.3d 372, 383–84 (11th Cir. 2018). 5 USCA11 Case: 19-13677 Date Filed: 12/01/2020 Page: 6 of 7

Amendment’s prohibition on cruel and unusual punishment. According to Mr.

Wims, his 15-year sentence under the ACCA is disproportionate because it increased

what would otherwise have been 12–18-month sentence for his instant offense based

on remote predicate offenses. The government rebuts Mr. Wims’ Eighth

Amendment argument on the merits, and also asserts that, as a threshold matter, Mr.

Wims waived his right to appeal on this ground in his plea agreement. On the issue

of the appeal waiver, Mr. Wims responds with various arguments, including that the

government waived its right to enforce the appeal waiver by failing to enforce it at

the district court, and that Mr. Wims did not agree to the appeal waiver knowing and

voluntarily. Mr. Wims’ Eighth Amendment argument fails. Assuming that he

succeeded in his challenge to the appeal waiver, he loses on the merits.

Mr. Wims raises his Eighth Amendment challenge for the first time on appeal,

and so we review it only for plain error. See United States v. Henderson, 409 F.3d

1293, 1307 (11th Cir. 2005). Under plain error review we, at our discretion, may

correct an error where the defendant demonstrates that (i) an error occurred; (ii) the

error was plain; (iii) the error affects substantial rights; and (iv) the error seriously

affects the fairness, integrity or public reputation of judicial proceedings. See

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-05, 1908-09 (2018). In most

scenarios, “there can be no plain error where there is no precedent from the Supreme

Court or this Court directly resolving it.” United States v. Lange, 862 F.3d 1290,

6 USCA11 Case: 19-13677 Date Filed: 12/01/2020 Page: 7 of 7

1296 (11th Cir. 2017) (quoting United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003)).

Mr. Wims has not identified any precedent that would lead us to conclude that

the district court plainly erred in sentencing him to the minimum mandatory under

the ACCA. On the other hand, we have upheld even longer sentences under the

ACCA. See United States v. Lyons, 403 F.3d 1248, 1257 (11th Cir. 2005) (rejecting

an Eighth Amendment challenge to a 235-month sentence under the ACCA). Absent

the existence of plain error, Mr. Wims’ Eighth Amendment challenge fails.

IV

For the foregoing reasons, we affirm Mr. Wims’ sentence of 15 years’

imprisonment under the ACCA.

AFFIRMED.