USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-12558 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RYAN PERRIN,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:18-cr-00480-SDM-TGW-1 ____________________ USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 2 of 9
2 Opinion of the Court 20-12558
Before WILSON, LUCK, and LAGOA, Circuit Judges. PER CURIAM: Ryan Perrin appeals his 180-month sentence after pleading guilty to being a felon in possession of a firearm. He argues that this sentence—enhanced under 18 U.S.C. section 924(e) because he was deemed an armed career criminal—violated both the statute and the Constitution. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY In April 2017, a confidential informant for the Bureau of Al- cohol, Tobacco, Firearms, and Explosives made agents aware that Perrin was trafficking firearms from his south Florida home. The agents set up a controlled purchase from Perrin, who sold the con- fidential informant a .380-caliber pistol and a .22-caliber rifle. Two weeks later, Perrin sold the confidential informant five more fire- arms and around ninety rounds of ammunition in a second con- trolled purchase. At the time of the firearms sales, Perrin had several previous state convictions, including one for selling or delivering cocaine in 2006 and two for aggravated assault in 2013. The grand jury re- turned an indictment against Perrin, and the government later charged him by a superseding information with two counts of pos- sessing a firearm while a convicted felon, in violation of 18 U.S.C. section 922(g)(1). USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 3 of 9
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Perrin pleaded guilty to both counts of the superseding in- formation, and the district court accepted his guilty plea. His presentencing investigation report found him subject to an en- hanced sentence under the Armed Career Criminal Act because his state convictions were “violent felon[ies] or . . . serious drug of- fense[s] . . . committed on different occasions from one another.” See 18 U.S.C. § 924(e). Perrin objected to the presentencing inves- tigation report on the ground that the government could not use arrest reports and probable-cause affidavits to show his prior state convictions had occurred on “different occasions” and thus sub- jected him to the section 924(e) enhancement. See Shepard v. United States, 544 U.S. 13, 16 (2005) (holding that police reports may not be used to prove eligibility for an Armed Career Criminal Act sen- tencing enhancement). At sentencing, the district court overruled Perrin’s objec- tion. It explained that it didn’t need to rely on the probable cause affidavits because it was clear from Shepard-admissible documents that Perrin’s previous offenses occurred on separate occasions. Having found that Perrin’s prior convictions qualified him for an enhanced sentence under section 924(e), the district court sen- tenced Perrin to 180 months’ imprisonment, the statutory mini- mum sentence. Perrin timely appealed.
STANDARD OF REVIEW We ordinarily review de novo whether a defendant qualifies for an enhanced sentence under the Armed Career Criminal Act. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). We USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 4 of 9
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also review de novo a properly preserved constitutional challenge to a defendant’s sentence. United States v. Harris, 741 F.3d 1245, 1248 (11th Cir. 2014). But “where a defendant fails to raise . . . an objection before the district court at sentencing, we review only for plain error.” Id. (citing United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)).
DISCUSSION On appeal, Perrin raises both statutory and constitutional objections to his sentence. First, he contends that under the Armed Career Criminal Act’s categorical approach, his Florida convictions for aggravated assault and selling or delivering cocaine aren’t pred- icate offenses under section 924(e). Second, he argues that the dis- trict court improperly relied on state court records to determine that his offenses occurred on separate occasions. Third, he asserts that his sentence violates the Fifth and Sixth Amendments because the superseding information did not allege the elements of section 924(e). We address each argument in turn. A. When Perrin pleaded guilty to the charges in the supersed- ing information, his criminal history included one conviction for selling or delivering cocaine under Florida Statutes section 893.13(1)(a)1., and two convictions for aggravated assault under Florida Statutes section 784.021(1)(a). Because Perrin didn’t object to using these offenses as the basis for his enhanced sentence before the district court, we review only for plain error. See Harris, 741 F.3d at 1248. To show an alleged error was “plain,” Perrin must USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 5 of 9
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demonstrate that the district court’s application of 18 U.S.C. sec- tion 924(e) was “plainly wrong” under current law. Henderson v. United States, 568 U.S. 266, 279 (2013) (emphasis removed). Here, he cannot. A defendant convicted under section 18 U.S.C. section 922(g) will receive a fifteen-year mandatory minimum sentence if he has three prior convictions for “violent felon[ies] or . . . serious drug offense[s] . . . committed on different occasions from one an- other.” 18 U.S.C. § 924(e). As Perrin acknowledges, we have pre- viously held that Florida’s cocaine distribution statute is a “serious drug offense.” See, e.g., United States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014). That makes one qualifying offense. And, in light of the Florida Supreme Court’s recent answer to a certified ques- tion of state law, we recently reaffirmed our holding that Florida’s aggravated assault statute is a “violent felony.” See Somers v. United States, 66 F.4th 890, 892 (11th Cir. 2023). That makes qualifying offense numbers two and three. In supplemental briefing, Perrin argues that Somers shouldn’t apply because, when he was convicted, Florida appellate courts disagreed about the mens rea required under the aggravated assault statute. But Somers rejected this argument. Because the Florida Supreme Court’s interpretation of a statute “tells us what that statute always meant,” a defendant “cannot rely on earlier de- cisions of Florida’s intermediate courts of appeal to avoid” a later holding. Id. at 696 (quotation omitted).
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USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-12558 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RYAN PERRIN,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:18-cr-00480-SDM-TGW-1 ____________________ USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 2 of 9
2 Opinion of the Court 20-12558
Before WILSON, LUCK, and LAGOA, Circuit Judges. PER CURIAM: Ryan Perrin appeals his 180-month sentence after pleading guilty to being a felon in possession of a firearm. He argues that this sentence—enhanced under 18 U.S.C. section 924(e) because he was deemed an armed career criminal—violated both the statute and the Constitution. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY In April 2017, a confidential informant for the Bureau of Al- cohol, Tobacco, Firearms, and Explosives made agents aware that Perrin was trafficking firearms from his south Florida home. The agents set up a controlled purchase from Perrin, who sold the con- fidential informant a .380-caliber pistol and a .22-caliber rifle. Two weeks later, Perrin sold the confidential informant five more fire- arms and around ninety rounds of ammunition in a second con- trolled purchase. At the time of the firearms sales, Perrin had several previous state convictions, including one for selling or delivering cocaine in 2006 and two for aggravated assault in 2013. The grand jury re- turned an indictment against Perrin, and the government later charged him by a superseding information with two counts of pos- sessing a firearm while a convicted felon, in violation of 18 U.S.C. section 922(g)(1). USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 3 of 9
20-12558 Opinion of the Court 3
Perrin pleaded guilty to both counts of the superseding in- formation, and the district court accepted his guilty plea. His presentencing investigation report found him subject to an en- hanced sentence under the Armed Career Criminal Act because his state convictions were “violent felon[ies] or . . . serious drug of- fense[s] . . . committed on different occasions from one another.” See 18 U.S.C. § 924(e). Perrin objected to the presentencing inves- tigation report on the ground that the government could not use arrest reports and probable-cause affidavits to show his prior state convictions had occurred on “different occasions” and thus sub- jected him to the section 924(e) enhancement. See Shepard v. United States, 544 U.S. 13, 16 (2005) (holding that police reports may not be used to prove eligibility for an Armed Career Criminal Act sen- tencing enhancement). At sentencing, the district court overruled Perrin’s objec- tion. It explained that it didn’t need to rely on the probable cause affidavits because it was clear from Shepard-admissible documents that Perrin’s previous offenses occurred on separate occasions. Having found that Perrin’s prior convictions qualified him for an enhanced sentence under section 924(e), the district court sen- tenced Perrin to 180 months’ imprisonment, the statutory mini- mum sentence. Perrin timely appealed.
STANDARD OF REVIEW We ordinarily review de novo whether a defendant qualifies for an enhanced sentence under the Armed Career Criminal Act. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). We USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 4 of 9
4 Opinion of the Court 20-12558
also review de novo a properly preserved constitutional challenge to a defendant’s sentence. United States v. Harris, 741 F.3d 1245, 1248 (11th Cir. 2014). But “where a defendant fails to raise . . . an objection before the district court at sentencing, we review only for plain error.” Id. (citing United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)).
DISCUSSION On appeal, Perrin raises both statutory and constitutional objections to his sentence. First, he contends that under the Armed Career Criminal Act’s categorical approach, his Florida convictions for aggravated assault and selling or delivering cocaine aren’t pred- icate offenses under section 924(e). Second, he argues that the dis- trict court improperly relied on state court records to determine that his offenses occurred on separate occasions. Third, he asserts that his sentence violates the Fifth and Sixth Amendments because the superseding information did not allege the elements of section 924(e). We address each argument in turn. A. When Perrin pleaded guilty to the charges in the supersed- ing information, his criminal history included one conviction for selling or delivering cocaine under Florida Statutes section 893.13(1)(a)1., and two convictions for aggravated assault under Florida Statutes section 784.021(1)(a). Because Perrin didn’t object to using these offenses as the basis for his enhanced sentence before the district court, we review only for plain error. See Harris, 741 F.3d at 1248. To show an alleged error was “plain,” Perrin must USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 5 of 9
20-12558 Opinion of the Court 5
demonstrate that the district court’s application of 18 U.S.C. sec- tion 924(e) was “plainly wrong” under current law. Henderson v. United States, 568 U.S. 266, 279 (2013) (emphasis removed). Here, he cannot. A defendant convicted under section 18 U.S.C. section 922(g) will receive a fifteen-year mandatory minimum sentence if he has three prior convictions for “violent felon[ies] or . . . serious drug offense[s] . . . committed on different occasions from one an- other.” 18 U.S.C. § 924(e). As Perrin acknowledges, we have pre- viously held that Florida’s cocaine distribution statute is a “serious drug offense.” See, e.g., United States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014). That makes one qualifying offense. And, in light of the Florida Supreme Court’s recent answer to a certified ques- tion of state law, we recently reaffirmed our holding that Florida’s aggravated assault statute is a “violent felony.” See Somers v. United States, 66 F.4th 890, 892 (11th Cir. 2023). That makes qualifying offense numbers two and three. In supplemental briefing, Perrin argues that Somers shouldn’t apply because, when he was convicted, Florida appellate courts disagreed about the mens rea required under the aggravated assault statute. But Somers rejected this argument. Because the Florida Supreme Court’s interpretation of a statute “tells us what that statute always meant,” a defendant “cannot rely on earlier de- cisions of Florida’s intermediate courts of appeal to avoid” a later holding. Id. at 696 (quotation omitted). USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 6 of 9
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B. Perrin next contends that, even if his prior convictions were violent felonies or serious drug offenses, the district court con- ducted impermissible judicial factfinding to conclude they oc- curred on “different occasions,” as is necessary for section 924(e) to apply. Perrin did raise this argument at sentencing, so we review the district court’s conclusion de novo. Howard, 742 F.3d at 1341. The Sixth Amendment guarantees the right to a jury trial for facts—other than a prior conviction—that could increase a defend- ant’s sentence. Jones v. United States, 526 U.S. 227, 243 n.6 (1999). And even as to prior convictions, the district court may not use ar- rest reports or probable-cause affidavits from prior state convic- tions to make factual findings about a defendant’s conduct under- lying those convictions. Shepard, 544 U.S. at 16. Instead, the district court is limited to using documents that reflect either (1) a jury de- termination of or (2) a defendant’s admission to prior criminal con- duct: “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defend- ant, or to some comparable judicial record of this information.” Id. at 26. The district court may also use Shepard documents to deter- mine whether a defendant’s prior offenses were committed on dif- ferent occasions for purposes of applying section 924(e). See United States v. Sneed, 600 F.3d 1326, 1332–33 (11th Cir. 2010). In reviewing the Shepard documents in this record, we agree the district court did not err in finding that Perrin’s convictions USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 7 of 9
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occurred on different occasions. Here is what the Shepard docu- ments show: Perrin sold or delivered cocaine in 2006. He commit- ted aggravated assault on May 21, 2013, by threatening to fire a pel- let gun at his victim. And he committed another aggravated assault three days later by threatening to use a knife against a different vic- tim. Under Wooden v. United States, it is clear that these offenses all occurred on different occasions. See 595 U.S. 360, 369 (2022) (“Of- fenses committed close in time, in an uninterrupted course of con- duct, will often count as part of one occasion; not so offenses sepa- rated by substantial gaps in time or significant intervening events.”). No illicit factfinding was necessary for the district court to conclude that section 924(e) applied to Perrin here. Perrin responds that two more recent Supreme Court cases prohibit district courts from using anything but the elements of a charged offense or direct admissions by a defendant to determine any fact about the offense—including the date on which it was committed. Cf. Descamps v. United States, 570 U.S. 254, 261 (2013) (prohibiting judicial inquiry into specific offense conduct to deter- mine whether a defendant’s actions fell within the generic defini- tion of an offense under the Armed Career Criminal Act); cf. also Mathis v. United States, 579 U.S. 500, 511–12 (2016) (holding that, in determining a sentence under the Armed Career Criminal Act, a district court “can do no more, consistent with the Sixth Amend- ment, than determine what crime, with what elements, the defend- ant was convicted of”). But, post-Descamps and Mathis, we have reaffirmed our holding that “[a]s long as a court limits itself to Shep- ard-approved sources, [it] may determine both the existence of USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 8 of 9
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prior convictions and the factual nature of those convictions, in- cluding whether they were committed on different occasions, based on its own factual findings.” United States v. Dudley, 5 F.4th 1249, 1259–60 (11th Cir. 2021) (quotations omitted); see also United States v. Longoria, 874 F.3d 1278, 1283 (11th Cir. 2017) (explaining that “district courts may determine both the existence of prior con- victions and the factual nature of those convictions, including whether they were committed on different occasions, so long as they limit themselves to Shepard-approved documents” (quotation omitted)). As we explained in Dudley, Perrin’s “reliance on Descamps and Mathis is misplaced. . . . Both Descamps and Mathis concerned when a district court may apply the modified categorical approach to ascertain whether a conviction qualifies as an ACCA violent fel- ony predicate—an inquiry not at issue here. Neither case addressed the second inquiry required by the ACCA—whether the qualifying violent offenses were committed on different occasions from one another. Therefore, Descamps and Mathis have no bearing on this case.” Dudley, 5 F.4th at 1264–65 (citations omitted). C. Finally, Perrin argues that his enhanced sentence under sec- tion 924(e) is unconstitutional under the Fifth and Sixth Amend- ments because its elements—his three qualifying convictions that stemmed from different occasions—were not alleged in the super- seding information. As with Perrin’s first argument, we review for USCA11 Case: 20-12558 Document: 51-1 Date Filed: 05/03/2024 Page: 9 of 9
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plain error because he raises it for the first time on appeal. See Har- ris, 741 F.3d at 1248. The district court did not err because we have held that the Constitution does not require either prior convictions or their oc- currence on different occasions to be alleged in an indictment or proven beyond a reasonable doubt. See United States v. Overstreet, 713 F.3d 627, 631–32 (11th Cir. 2013) (rejecting the exact argument Perrin makes here). Perrin never cites or discusses Overstreet, but it remains the law all the same. The district court thus didn’t err— plainly or otherwise—in sentencing Perrin as an armed career criminal, even though the language in the superseding indictment didn’t track the elements of section 924(e). AFFIRMED.