United States v. Patrick Richard Smith

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 30, 2019
• Docket: 17-11427
• Status: Unpublished

Opinion

Case: 17-11427 Date Filed: 04/30/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-11427 Non-Argument Calendar ________________________

D.C. Docket No. 6:16-cr-00135-PGB-KRS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICK RICHARD SMITH, a.k.a. Patrick R. Smith, a.k.a. Patrick Smith,

Defendant-Appellant.

________________________

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

(April 30, 2019)

Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-11427 Date Filed: 04/30/2019 Page: 2 of 10

Patrick Smith appeals his 96-month sentence of imprisonment after pleading

guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, he argues that the district court erred in calculating his base

offense level and criminal history category under the Sentencing Guidelines. He

also contends that § 922(g)(1) is unconstitutionally void for vagueness. We affirm.

I.

Smith’s first argument concerns his base offense level under U.S.S.G.

§ 2K2.1, the guideline for § 922(g)(1) offenses. Under § 2K2.1, the base offense

level for a § 922(g)(1) offense is 12 unless the offense involved certain firearms or

the defendant has certain prior criminal convictions. See generally id. § 2K2.1(a).

As relevant here, the base offense level is 24 if the defendant has “at least two felony

convictions of either a crime of violence or a controlled substance offense.”

U.S.S.G. § 2K2.1(a)(2). Where the defendant has only one such predicate

conviction, however, the base offense level is 20. U.S.S.G. § 2K2.1(a)(4)(A).

The district court applied § 2K2.1(a)(2), finding that Smith had two predicate

convictions: one crime of violence—aggravated battery; and one controlled

substance offense—manufacture of hashish, manufacture of cannabis, and

possession of cannabis with intent to sell. Smith does not dispute that his

aggravated-battery conviction is a qualifying crime of violence. But he argues that

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the drug conviction is not a controlled substance offense. So, in his view, the court

should have applied § 2K2.1(a)(4)(A) and its base offense level of 20.

We 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 “controlled substance offense” is a federal or state offense

that (1) is “punishable by imprisonment for a term exceeding one year” and (2)

“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.” See U.S.S.G. § 2K2.1, cmt.

n.1 (adopting U.S.S.G. § 4B1.2(b)’s definition of “controlled substance offense”).

Here, the district court did not err in applying § 2K2.1(a)(2). Based on the

state-court judgment for the drug offense, Smith was convicted under Fla. Stat.

§ 893.13(1)(a)(2), which makes it a third-degree felony, punishable by up to five

years of imprisonment, to “sell, manufacture, or deliver, or possess with intent to

sell, manufacture, or deliver” cannabis. Fla. Stat. §§ 893.13(1)(a)(2), 775.082(1)(e).

Neither party cites the case, but we have held that § 893.13(1) is a “controlled

substance offense” under the Guidelines. United States v. Smith, 775 F.3d 1262,

1268 (11th Cir. 2014).

Smith’s claim that “low-level” drug felonies don’t count under the Guidelines

is contradicted by the plain terms of the definition of “controlled substance

3 Case: 17-11427 Date Filed: 04/30/2019 Page: 4 of 10

offense.” 1 Under this definition, the state-law offense must be “punishable by

imprisonment for a term exceeding one year.” U.S.S.G. § 4B1.2(b). This

requirement is met because, as Smith concedes, his offense was a third-degree

felony, which is punishable “by a term of imprisonment not exceeding 5 years.” Fla.

Stat. § 775.082(1)(e). Accordingly, Smith’s conviction under § 893.13(1)(a)(2)

qualifies as a predicate controlled substance offense. See Smith, 775 F.3d at 1268.

II.

Smith next contends that the district court erred in calculating his criminal

history category. Smith received a total of 23 criminal history points, well over the

13 points necessary to put him in the highest criminal history category: VI. See

U.S.S.G. ch. 5, pt. A (sentencing table). He maintains on appeal that he should have

received 12 points, putting him, just barely, in category V. See id.

A.

We first consider Smith’s challenge to the scoring of his convictions for

aggravated battery (¶ 34 of the final PSR) and uttering a forged bill (¶ 51). He says

that he did not commit aggravated battery because he acted in self-defense and that

he did not serve any jail time for the conviction for uttering a forged bill.

1 Smith’s assertion that a state drug offense must “a second degree felony or higher” may be loosely accurate in relation to the Armed Career Criminal Act. See 18 U.S.C. § 924(e)(2)(A)(i)– (ii) (defining “serious drug offense” as an offense with a “maximum term of imprisonment of ten years or more” (emphasis added)). But the Guidelines’ definition is different. 4 Case: 17-11427 Date Filed: 04/30/2019 Page: 5 of 10

Criminal history points are based on the sentence imposed for a criminal

conviction. See U.S.S.G. § 4A1.1. As relevant here, a defendant receives three

points “for each prior sentence of imprisonment exceeding one year and one month,”

U.S.S.G. § 4A1.1(a), while two points are added for “each prior sentence of

imprisonment of at least sixty days not counted in [§ 4A1.1(a)],” id. § 4A1.1(b).

“The term ‘sentence of imprisonment’ means a sentence of incarceration and refers

to the maximum sentence imposed.” Id. § 4A1.2(b)(1).

Here, the district court properly scored Smith’s convictions for aggravated

battery and uttering a forged bill. Although Smith claims he acted in self-defense,

he doesn’t dispute that he was convicted by a jury of aggravated battery and

sentenced to four years of imprisonment. So, the court properly added three points.

See U.S.S.G. §4A1.1(a). As to the conviction for uttering a forged bill, the judgment

for that offense reflects that he was sentenced to a term of 60 days in the county jail,

despite Smith’s claim that he was sentenced solely to drug treatment. Because he

was sentenced to a maximum of at least 60 days of jail, the court properly added two

points. See U.S.S.G. § 4A1.1(b); id. § 4A1.2(b)(1).

B.

Smith next contends that the government failed to offer adequate proof of the

fact of several prior convictions under Shepard v. United States, 544 U.S. 13 (2005).

He maintains that Shepard requires the government to produce evidence of a

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judgment or other comparable judicial record, and that the government’s evidence

in this case fell short with respect to four convictions: aggravated battery (PSR ¶ 34),

resisting law enforcement (¶ 45), resisting law enforcement (¶ 46), and

theft/receiving stolen property (¶ 47).2

The government is required to prove the fact of a prior conviction by a

preponderance of the evidence. United States v. Alicea, 875 F.3d 606, 608 (11th Cir.

2017). To meet that burden, “the best approach would always be to produce a

certified copy of the conviction.” United States v. Wilson, 183 F.3d 1291, 1301 (11th

Cir. 1999). But the government may offer “any information, including reliable

hearsay, regardless of the information’s admissibility at trial, provided that there are

sufficient indicia of reliability to support its probable accuracy as evidence of a prior

conviction.” United States v. Brown, 526 F.3d 691, 710 (11th Cir. 2008) (quotation

marks omitted), vacated on other grounds, 556 U.S. 1150 (2009), reinstated, 329 F.

App’x 253 (11th Cir. 2010).

Smith misreads Shepard. Shepard restricts the evidence courts can rely on

when determining the character of a prior conviction as a predicate offense for

purposes of the Armed Career Criminal Act or the career-offender enhancement.

Brown, 526 F.3d at 712; United States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir.

2 To the extent Smith also challenges the proof of the drug conviction used to enhance his base offense level, we reject this argument because the government submitted the criminal judgment for that offense. 6 Case: 17-11427 Date Filed: 04/30/2019 Page: 7 of 10

2005). But it does not address what documents can be used to prove the fact of a

prior conviction. 526 F.3d at 712. Nor have we held that “a prior conviction must

be demonstrated by a judgment or comparable record of the disposition of charges.”

Brown, 526 F.3d at 712 (rejecting this argument); see Wilson, 183 F.3d at 1301

(concluding that a “[presentence investigation report], the on-the-record statements

of a probation officer, and the notes of another probation officer” were sufficiently

reliable to support a finding of a prior conviction).

Here, the district court did not reversibly err in calculating Smith’s criminal

history category. The government was not required to offer a certified copy of the

judgment or other comparable judicial record to prove the fact of the prior

convictions. Brown, 526 F.3d at 712. All it had to do was present evidence that,

“taken together,” is “sufficiently reliable to support the court’s finding” of a

conviction. Wilson, 183 F.3d at 1301.

It’s clear the government met its burden with regard to the convictions for

aggravated battery and theft/receiving stolen property (PSR ¶¶ 34 & 47). In support

of these convictions, the government produced the respective criminal judgments,

which were sufficiently reliable to support the court’s finding that Smith had been

convicted of these offenses. See Wilson, 183 F.3d at 1301.

For the remaining two convictions for resisting law enforcement (PSR ¶¶ 45

& 46), however, the adequacy of the government’s proof is less clear. These

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convictions were supported only by uncertified “case summaries”—essentially

docket sheets—from Indiana state courts. While we have held that docket sheets

may be considered at sentencing without violating a defendant’s constitutional

rights, see Brown, 526 F.3d at 712, we have not addressed whether docket sheets are

“sufficient reliable” to support a finding of a prior conviction, see id. at n.25 (noting

that the defendant “does not argue that the docket sheets lacked sufficient indicia of

reliability to support [their] probable accuracy as evidence of the prior convictions”

(quotation marks omitted)).

In any case, while Smith has provided no persuasive reason to believe that the

information contained in the case summaries lacked sufficient indicia of reliability,

we need not resolve whether the case summaries in this case constituted adequate

proof. That’s because any error in scoring the convictions for resisting law

enforcement, which yielded a total of four criminal history points, was harmless.

Without the points for these offenses, Smith still has 16 criminal history points,

which is more than enough to keep him in criminal history category VI. See

U.S.S.G. ch. 5, pt. A (sentencing table). Because the court’s error, if any, had no

effect on his criminal history category or guideline range, we conclude that it was

harmless. See United States v. Sarras, 575 F.3d 1191, 1220 n.39 (11th Cir. 2009)

(stating that any error in applying a sentencing enhancement was harmless because

the defendant’s “total offense level would have remained the same”).

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For these reasons, the district court properly sentenced Smith based on a

criminal history category of VI.

III.

Finally, Smith argues that § 922(g)(1) is unconstitutionally vague as applied

to him because the statute fails to provide fair warning and authorizes arbitrary

enforcement.3 We disagree.

Ordinarily, we review de novo whether a criminal statute is void-for-

vagueness as applied to a defendant’s conduct. See United States v. Nelson, 712

F.3d 498, 504 (11th Cir. 2013). Issues not raised before the district court, however,

are reviewed for plain error only. United States v. Hesser, 800 F.3d 1310, 1324

(11th Cir. 2015). Smith did not raise his void-for-vagueness objection below, so we

review, at most, for plain error. To succeed on plain-error review, the defendant

must establish that the court deviated from a “clearly established” legal rule in a way

that affected his substantial rights. See id. at 1324–25.

A criminal statute is unconstitutionally vague when it “fails to provide a

person of ordinary intelligence fair warning, or authorizes arbitrary and

discriminatory enforcement.” United States v. Lebowitz, 676 F.3d 1000, 1012 (11th

3 In this same section, Smith also contends in passing that the government failed to disclose evidence and the criminal history of a confidential source. He provides no citations to the record or caselaw in support of his position, however, so we conclude that he has abandoned this argument. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (holding that an appellant abandons a claim if he fails to raise it plainly and prominently and makes only passing references to it). 9 Case: 17-11427 Date Filed: 04/30/2019 Page: 10 of 10

Cir. 2012) (per curiam). Statutes have a strong presumption of validity. Id. Smith

was convicted of violating § 922(g)(1), which makes it unlawful for any person who

has been convicted of a crime punishable by imprisonment for a term over one year

“to ship or transport in interstate or foreign commerce, or possess in or affecting

commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1).

Here, Smith has not established plain error. Smith’s claim that the statute

invites arbitrary enforcement is largely unexplained and is unsupported by the

record. Nor is the provision so vague that a person of ordinary intelligence would

have to guess at its meaning. As applied to Smith, the plain language of § 922(g)(1)

makes it clear that it is unlawful for (a) a person who has been convicted of a felony

(b) to possess any firearm or ammunition that has moved in interstate commerce.

These requirements are straightforward and sufficient to provide fair warning of the

proscribed conduct. At the very least, it’s not “clearly established” that it would be

unconstitutional to apply § 922(g)(1) to Smith, a convicted felon who admitted that

he possessed a firearm that had travelled in interstate commerce. See, e.g., United

States v. Carter, 981 F.2d 645, 647 (2d Cir. 1992) (section 922(g)(1) was not

unconstitutionally vague as applied to possession of a firearm that had travelled in

interstate commerce). Accordingly, we reject his void-for-vagueness argument.

AFFIRMED.