United States v. Terry Cadet

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 8, 2020
• Docket: 19-14315
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14315 Non-Argument Calendar ________________________

D.C. Docket No. 0:18-cr-60085-JIC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY CADET,

Defendant-Appellant.

________________________

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

(July 8, 2020)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 19-14315 Date Filed: 07/08/2020 Page: 2 of 12

Terry Cadet appeals his conviction and 120-month sentence for possession

of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and his

conviction and 31-month sentence for possession of a firearm by a prohibited

person, in violation of 18 U.S.C. § 922(g)(8). He raises two arguments on appeal.

First, he asserts that in light of the Supreme Court’s decision in Rehaif v. United

States, 139 S. Ct. 2191 (2019), his indictment is deficient because it failed to allege

that he had knowledge of his status or to reference 18 U.S.C. § 924(a)(2). Second,

he contends that by imposing separate convictions and sentences under two

subdivisions of § 922(g) when the charged offenses arose from the same incident,

the district court imposed multiple punishments for the same offense, in violation

of the Double Jeopardy Clause.

I.

A grand jury indicted Cadet for possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 1); and possession of

a firearm and ammunition by a prohibited person, in violation of § 922(g)(8)

(Count 2). The indictment provided that, on or about February 18, 2018, Cadet

knowingly possessed a firearm and ammunition after being convicted of a crime

punishable by a term of imprisonment exceeding one year and after being subject

to a court order that: (1) was issued after a hearing that he had notice of and an

opportunity to participate in; (2) prohibited him from harassing, stalking, or

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threatening an intimate partner, or engaging in conduct that would place the

intimate partner in reasonable fear of bodily injury; and (3) expressly prohibited

the use, attempted use, and threatened use of physical force against the intimate

partner that would reasonably be expected to cause bodily injury. (Id.).

Cadet pled guilty to both counts without a plea agreement. During the

change of plea hearing, he additionally stated that he had read and signed the

“Agreed Factual Basis for Plea” and agreed that it was accurate. The district court

incorporated the factual proffer by reference, accepted Cadet’s plea, and adjudged

him guilty.

The factual proffer stated the following. On February 18, 2018, law

enforcement received a 911 call from Victim 1, who stated that she was Cadet’s

girlfriend and he had struck her in the face with a closed fist several times. Victim

1 additionally stated that Cadet had a firearm and was driving, informing the 911

operator of his location. Local law enforcement made contact with Cadet and

placed him under arrest for domestic violence battery. They were unable to locate

a firearm in Cadet’s car, but during a pat down search, they felt what appeared to

be a firearm inside Cadet’s pants and lodged between his buttocks. They

repeatedly asked Cadet to loosen his grip on the firearm, but Cadet refused.

Continuing to search Cadet’s buttocks area for the firearm, law enforcement

recovered a loaded pistol.

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The proffer further provided that a records check revealed that Cadet had

been convicted of several felonies punishable by at least one year in prison and that

there was an outstanding protection order against him for domestic violence

against Victim 2, another female. On July 23, 2013, Cadet was served a notice of

hearing for a “Temporary Judgment of Injunction for Protection against Domestic

Violence.” He was provided an opportunity to participate in the hearing. On

August 19, 2013, he was served with a “Final Judgment of Injunction for

Protection against Domestic Violence” that was currently in effect. The protection

order prohibited Cadet from committing any acts of domestic violence against

Victim 2, including “assault, aggravated assault, battery, aggravated battery, sexual

assault, sexual battery, stalking, aggravated stalking, kidnapping, false

imprisonment, or any other criminal offense resulting in physical injury or death.”

In addition, Cadet was ordered to surrender any firearms and ammunition in his

possession to local law enforcement.

According to the presentence investigation report (“PSI”), Cadet had several

felony convictions for offenses such as armed robbery, possession of cocaine, and

burglary. In May 2000, Cadet was sentenced to 120 months in prison for armed

robbery, his sentence was later modified to approximately 85 months in prison, and

he was released in August 2006. With respect to his conviction for possession of

cocaine, Cadet was sentenced to 60 months in prison in November 2007 and

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released in November 2008. Cadet was also sentenced to 60 months in prison for

burglary in November 2007, but he was resentenced to 14 months in prison and

released in November 2008.

At the sentencing hearing, the district court sentenced Cadet to a total of 151

months in prison, with 120 months in prison as to Count 1 and 31 months in prison

as to Count 2, to be served consecutively. The court additionally sentenced Cadet

to three years of supervised release as to Counts 1 and 2, to run concurrently.

Cadet timely appealed, arguing in relevant part that the district court erred in

imposing multiple punishments for the same offense, as his convictions under

separate subdivisions of 18 U.S.C. § 922(g) violated his rights under the Double

Jeopardy Clause. He requested that this Court vacate and remand this case with

instructions that the district court vacate one of his convictions. The government

conceded that the district court plainly erred but asserted that, rather than vacate

one of Cadet’s convictions, the district court should merge his convictions for

purposes of sentencing. This Court reversed and remanded, concluding that the

district court plainly erred in imposing consecutive sentences for Cadet’s “dual

violations of § 922(g),” in light of its decision in United States v. Winchester, 916

F.2d 601 (11th Cir. 1990). The Court instructed the district court “to resentence

Cadet in accordance with [the Winchester] opinion.”

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At the resentencing hearing, the district court interpreted this Court’s

opinion as instructing it to impose Cadet’s sentences on Counts 1 and 2

concurrently. The government argued that Cadet should only be sentenced on one

count and that a 120-month sentence was appropriate. Asserting that this Court’s

opinion indicated that he could only be sentenced for up to 120 months in prison,

Cadet requested that the district court impose a 100-month sentence to account for

his acceptance of responsibility.

The district court adjudged Cadet guilty of Counts 1 and 2. It sentenced him

to 120 months in prison as to Count 1, concurrent with 31 months in prison as to

Count 2, followed by 3 years of supervised release as to both Counts, to be served

concurrently. The court additionally ordered Cadet to pay a mandatory special

assessment of $100 for each count, totaling $200.

II.

We review a challenge to the district court’s subject-matter jurisdiction de

novo, regardless of whether it was raised in the district court. United States v.

Iguaran, 821 F.3d 1335, 1336 (11th Cir. 2016). Nevertheless, a non-jurisdictional

challenge to the sufficiency of an indictment can be waived or forfeited. See

United States v. Cotton, 535 U.S. 625, 631 (2002) (applying plain error review to a

forfeited claim following jury conviction); United States v. Brown, 752 F.3d 1344,

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1354 (11th Cir. 2014) (concluding that the defendant’s guilty plea waived her

non-jurisdictional challenge to the indictment).

An unconditional guilty plea waives all claims regarding non-jurisdictional

defects to an indictment. Brown, 752 F.3d at 1347–48, 1354. When a challenge to

an indictment is not waived by a guilty plea and was not preserved below, we

review for plain error. Cotton, 535 U.S. at 627-29, 631-32; see United States v.

Reed, 941 F.3d 1018, 1021 (11th Cir. 2019). Under plain error review, a defendant

must show that an error occurred, it was plain, it affected his substantial rights, and

it “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Reed, 941 F.3d at 1021 (quotation marks omitted, alteration in

original).

We are bound to follow prior binding precedent unless and until it is

overruled by this Court sitting en banc or the Supreme Court. United States v.

Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). Where a defendant does not

offer any argument regarding an issue on appeal, he is deemed to have abandoned

that issue. United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998).

Section 922(g) of Title 18 of the United States Code governs offenses for

unlawful possession of a firearm and ammunition. 18 U.S.C. § 922(g). In relevant

part, it prohibits the possession of a firearm or ammunition by a person who has

been convicted of a crime punishable by a term of imprisonment exceeding one

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year. Id. § 922(g)(1). It also prohibits the possession of a firearm or ammunition

by a person who is subject to a court order that: (1) was issued after a hearing of

which the person had notice and in which he could participate; (2) “restrains such

person from harassing, stalking, or threatening an intimate partner . . . , or

engaging in other conduct that would place an intimate partner in reasonable fear

of bodily injury”; and (3) “by its terms explicitly prohibits the use, attempted use,

or threatened use of physical force against such intimate partner . . . that would

reasonably be expected to cause bodily injury.” Id. § 922(g)(8). Section 924(a)(2)

provides that anyone who “knowingly violates” § 922(g) “shall be fined as

provided in this title, imprisoned not more than 10 years, or both.” Id. § 924(a)(2).

The Supreme Court in Rehaif held that to be prosecuted under § 922(g) and

§ 924(a)(2), a defendant must have known that he belonged to a category of

persons barred from possessing a firearm or ammunition. 139 S. Ct. at 2200.

Since Rehaif, we have concluded that the failure of an indictment charging a

§ 922(g) violation to allege that a defendant had knowledge of his status or to cite

§ 924(a)(2) does not deprive a district court of jurisdiction. United States v.

Moore, 954 F.3d 1322, 1336-37 (11th Cir. 2020). However, the omission of the

knowledge element is an error that Rehaif made plain. Reed, 941 F.3d at 1019-21.

To determine whether this error affected the defendant’s substantial rights, we

have examined whether the evidence in the record shows that the defendant had

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knowledge of his status when he possessed the firearm and ammunition. Id. at

1021-22; Moore, 954 F.3d at 1337-38.

Here, to the extent that Cadet asserts that the district court lacked jurisdiction

because the indictment failed to allege that he had knowledge of his status or

reference § 924(a)(2), his argument is foreclosed by our binding precedent. See

Moore, 954 F.3d at1336-37. Because the alleged errors in the indictment are non-

jurisdictional and Cadet does not challenge the validity of his plea in his brief, and

thus abandoned that issue, he waived his claim that the indictment was deficient by

pleading guilty.

Moreover, even if Cadet’s claim was not waived by his guilty plea, it fails

under plain error review because the facts in the record establish that Cadet knew

that he was a felon and subject to a protection order when he possessed the firearm

and ammunition, and therefore, he fails to establish that the error affected his

substantial rights. Specifically, as stated in the factual proffer and PSI—which he

did not object to—Cadet had several convictions in which he was sentenced to

prison for more than 1 year, including a 120 month sentence that he served for at

least 75 months. The factual proffer additionally stated that Cadet had received a

“Final Judgment of Injunction for Protection against Domestic Violence”

prohibiting him from committing acts of domestic violence against Victim 2 and

that he had been ordered to surrender any firearms and ammunition in his

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possession. Finally, Cadet’s offense conduct indicates that he had knowledge of

his status as a felon or a person subject to a protection order, or both, because he

presumably hid the pistol between his buttocks during his encounter with law

enforcement because he knew that he was not permitted to possess a firearm and

wanted to avoid discovery of the pistol.

III.

We generally review alleged violations of the Double Jeopardy Clause de

novo. United States v. Rivera, 77 F.3d 1348, 1350 (11th Cir. 1996). However, a

claim of error that was not preserved is reviewed for plain error. United States v.

Lewis, 492 F.3d 1219, 1222 (11th Cir. 2007) (en banc).

The Double Jeopardy Clause of the Fifth Amendment provides that no

person shall “be subject for the same offence to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. Among other things, the Double Jeopardy Clause

protects against multiple punishments for the same offense. United States v.

Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009).

In Ball v. United States, the Supreme Court concluded that where Congress

does not intend a defendant to receive multiple punishments for the same conduct,

the imposition of separate convictions and sentences constitutes unauthorized

punishment, even if the sentences are concurrent with one another. 470 U.S. 856,

864-65 (1985). It explained that a separate conviction could have collateral

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consequences, such as delaying a defendant’s eligibility for parole or increasing his

sentence under a recidivist statute, and it “certainly carries the societal stigma

accompanying any criminal conviction.” Id. at 865. A mandatory special

assessment is, by itself, a sufficient collateral consequence requiring that a

multiplicitous conviction be vacated. Rutledge v. United States, 517 U.S. 292,

301-03 (1996).

In United States v. Winchester, we determined that where the charged

offenses arose from a single incident, a defendant cannot be punished under two or

more separate subdivisions of 18 U.S.C. § 922(g). 916 F.2d 601, 606-07 (11th Cir.

1990). Noting that Congress’s intent in enacting § 922(g) was to prohibit the

possession of firearms by classes of individuals considered dangerous, rather than

punish a person based on his particular status under the law, we rejected the

government’s argument that “a convicted felon who is also a fugitive from justice,

a drug addict, a ‘mental defective,’ and an illegal alien, could be sentenced to five

consecutive terms of imprisonment for the same incident, namely, the possession

of a firearm.” Id. Concluding that the district court erred in sentencing the

defendant to consecutive terms of imprisonment for possession of a firearm on a

single occasion, we reversed and remanded for resentencing. Id. at 608.

Here, the district court plainly erred in imposing two separate convictions

and sentences for violation of two subdivisions § 922(g) because both convictions

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arose out of the same incident. In light of the Supreme Court’s decisions regarding

concurrent sentences for multiplicitous convictions and our decision in Winchester,

the district court’s error is plain. The error also affected Cadet’s substantial rights

because he was required to pay a $100 special assessment for each conviction and

could suffer other collateral consequences resulting from the second conviction.

Finally, the imposition of multiple punishments, in violation of the Double

Jeopardy Clause, seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Accordingly, we vacate Cadet’s sentences and remand in

part with instructions that one of the convictions be vacated and merged into the

other, and that he be resentenced on a single count with only one special

assessment of $100. Ball, 470 U.S. at 864.

AFFIRMED in part, VACATED in part, AND REMANDED.