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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12109 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cr-00245-SDM-AAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM JEROME HOWARD, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 2, 2019)
Before MARCUS, BRANCH and HULL, Circuit Judges.
PER CURIAM: Case: 18-12109 Date Filed: 04/02/2019 Page: 2 of 16
After pleading guilty, William Jerome Howard, Jr., appeals his 168-month
sentence for possession with intent to distribute 28 grams or more of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). Howard raises the
following issues for the first time on appeal. Howard argues that the district court
plainly erred when it subjected him to: (1) a career offender sentence enhancement
under the United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1; and (2) a
ten-year statutory mandatory minimum term of imprisonment pursuant to an
enhancement under 21 U.S.C. § 841(b)(1)(B). Howard contends that he does not
qualify for either of those enhancements because his prior Florida drug
convictions, under Fla. Stat. § 893.13, do not constitute (1) “controlled substance
offenses” under the career offender guidelines or (2) “felony drug offenses” for
purposes of the mandatory minimum statute.
After careful review of the briefs and record, we affirm.
I. FACTUAL BACKGROUND
A. Offense Conduct
In January 2017, a law enforcement officer attempted to stop a car for
running a red light. Instead of pulling over, the driver, who was later identified to
be Howard, drove away from the officer, but eventually spun out of control before
coming to a stop. Howard then abandoned the car and fled on foot with a cloth bag
in his hand. Additional officers arrived and eventually arrested Howard. During a
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search incident to Howard’s arrest, the officers looked in Howard’s cloth bag and
found one plastic bag containing approximately 94 grams of cocaine base and
another plastic bag containing approximately 28 grams of cocaine.
As a result, a grand jury indicted Howard on one count of possessing with
intent to distribute 28 grams or more of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Howard initially pled not guilty.
B. Prior Convictions
As relevant background to the enhancements, in July 2009, Howard was
arrested and charged with possessing 28 grams or more but less than 200 grams of
cocaine. In March 2012, Howard pled guilty to one felony count of possession of
cocaine with intent to sell, in violation of Fla. Stat. § 893.13(1)(a)(1).1 In June
2012, Howard was sentenced to 30 months’ imprisonment, followed by 24 months’
community control and 6 months’ probation, to run concurrently with his 2011
offenses below.
In January 2011, Howard sold 2.8 grams of crack cocaine to an officer. He
committed this offense while on bond and awaiting trial for his 2009 felony
offense. In May 2011, Howard fled from law enforcement officers, and officers
executed a search warrant at Howard’s residence the next day. Officers found 25.9
1 In his brief on appeal, Howard indicates which subsections of Fla. Stat. § 893.13 form the bases of all of his prior drug convictions. 3 Case: 18-12109 Date Filed: 04/02/2019 Page: 4 of 16
grams of cocaine in a coat in Howard’s closet and .2 grams of cocaine base in the
dining room. In May 2011, Howard was arrested and charged with two counts of
sale of cocaine, in violation of Fla. Stat. § 893.13(1)(a)(1), three counts of
possession of cocaine, in violation of Fla. Stat. § 893.13(6)(a), and one count of
fleeing or eluding, in violation of Fla. Stat. § 316.1935. In March 2012, Howard
pled guilty to all six crimes. In June 2012, Howard was sentenced on each crime
to 30 months’ imprisonment, followed by 24 months’ community control and 6
months’ probation, all to run concurrently with each other and with his 2009
offense above.
In February 2014, Howard was released from prison. Howard’s term of
community control was converted to probation in February 2015, and his probation
was terminated in May 2015.
The parties refer to Howard’s prior Florida drug offenses in 2009 and 2011
collectively as the 2012 convictions because he was sentenced on all of them in
2012. However, for clarity, we separately refer to his prior conviction for one
count of possession of cocaine with intent to sell as the “2009 offense” and his
prior convictions for two counts of sale of cocaine and three counts of possession
of cocaine as the “2011 offenses.”2
2 In the district court and on appeal, Howard has not disputed that he actually has these convictions. Rather, he contends they do not qualify as predicates for the sentencing enhancements in his case. 4 Case: 18-12109 Date Filed: 04/02/2019 Page: 5 of 16
C. Guilty Plea
Before Howard pled guilty to the instant federal drug offense, the
government filed an information and notice of prior convictions, pursuant to 21
U.S.C. §§ 841(b)(1)(B) and 851, charging that Howard was subject to enhanced
penalties based on his prior Florida felony drug convictions. Specifically, the
§ 851 notice stated that Howard was convicted of his 2011 offenses, namely two
counts of selling cocaine, in violation of Fla. Stat. § 893.13(1)(a)(1), and three
counts of possessing cocaine, in violation of Fla. Stat. § 893.13(6)(a). The § 851
notice stated that, because Howard’s five 2011 offenses were felony drug offenses
within the meaning of 21 U.S.C. § 841(b)(1)(B), Howard faced a statutory
mandatory minimum term of ten years’ imprisonment for his instant federal drug
charge.
Subsequently, Howard decided to plead guilty. At his change-of-plea
hearing, Howard stated that he was not pleading guilty pursuant to a plea
agreement. The magistrate judge explained the effect that entry of a guilty plea
would have on Howard’s sentence. In particular, the magistrate judge advised
Howard that (1) the government had filed a § 851 notice of sentence enhancement
asserting that Howard had prior convictions for felony drug offenses, and (2) if
Howard pled guilty, he would be subject to a statutory mandatory minimum term
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of ten years’ imprisonment. The magistrate judge asked Howard if he understood
the punishment consequences of his plea, and Howard responded yes. At that
time, Howard confirmed that he previously was convicted of at least one felony
drug offense, namely the sale of cocaine.
The magistrate judge then found that Howard was fully competent and
capable of entering an informed plea, he was aware of the consequences of the plea
and the nature of the charges, and his guilty plea was knowing and voluntary. The
magistrate judge recommended that Howard’s guilty plea be accepted. Without
objection, the district court accepted Howard’s guilty plea and adjudged him
guilty.
D. Sentencing
Howard’s presentence investigation report (“PSI”) assigned him a total
offense level of 34. His total offense level included an enhancement for being a
career offender under U.S.S.G. § 4B1.1 because he had two prior “controlled
substance offenses.” See U.S.S.G. § 4B1.1(a) (stating, in relevant part, that a
defendant is a career offender if he has at least two prior felony convictions for a
“controlled substance offense”). In fact, Howard had three prior Florida drug
convictions for (1) possession of cocaine with intent to sell (one count in 2009), in
violation of Fla. Stat. § 893.13(1)(a)(1), and (2) sale of cocaine (two counts in
2011), in violation of Fla. Stat. § 893.13(1)(a)(1), that were felony controlled
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substance offenses. Howard’s criminal history category was IV. His status as a
career offender increased his criminal history category to VI.
Further, the PSI indicated that the § 841(b)(1)(B) enhancement required only
one prior “felony drug offense” conviction to trigger his statutory mandatory
minimum term of imprisonment of ten years to life. See 21 U.S.C. § 841(b)(1)(B)
(stating that where an individual violates § 841(a)(1) after a prior conviction for a
“felony drug offense” has become final, the mandatory minimum corresponding
term of imprisonment becomes ten years to life). Based on a total offense level of
34 and a criminal history category of VI, Howard’s advisory guidelines range was
262 to 327 months’ imprisonment. 3
Prior to sentencing, Howard filed a sentencing memorandum and motion for
a downward variance, in which he admitted that his 2009 possession of cocaine
with intent to sell offense and 2011 sale of cocaine offenses “qualif[ied] as
controlled substance[] offenses under USSG § 4B1.1.” Howard argued that a
sentence within his advisory guidelines range resulting from the career offender
enhancement would result in an unjust sentence contrary to a reasoned
consideration of the 18 U.S.C. § 3553 factors, and, therefore, he requested a
3 Without the career offender or § 841(b)(1)(B) enhancement, Howard would have had a total offense level of 21 and a criminal history category of IV, resulting in an advisory guidelines range of 57 to 71 months’ imprisonment. If only the § 841(b)(1)(B) enhancement applied for a felony drug offense, his guidelines range would have been the statutory mandatory minimum sentence of 120 months’ imprisonment. See U.S.S.G. § 5G1.1(b). 7 Case: 18-12109 Date Filed: 04/02/2019 Page: 8 of 16
downward variance. Howard stated that the statutory mandatory minimum term of
ten years’ imprisonment would be more than sufficient but not greater than
necessary to satisfy the purposes of sentencing in § 3553. Also, Howard’s counsel
stated that he remained hopeful that the government would withdraw the
§ 841(b)(1)(B) enhancement, and if that happened, defense counsel would propose
that the district court sentence Howard to a sentence near the five-year mandatory
minimum term of imprisonment applicable without the statutory enhancement.
At sentencing, Howard stated that he had no objections to the PSI’s facts or
guidelines calculations. In particular, Howard said that he had no objection to his
total offense level of 34 and criminal history category of VI as calculated in the
PSI. The district court adopted the PSI’s facts and guidelines calculations.
Howard argued that, based on the 18 U.S.C. § 3553(a) sentencing factors, the
district court should impose “the minimum sentence that the [c]ourt at this point is
authorized to impose . . . and that would be a sentence of ten years.”
After hearing from the parties and considering the advisory guidelines range,
the career offender provisions, the § 3553(a) factors, and Howard’s sentencing
memorandum, the district court varied downward by 94 months from the low end
of the guidelines range (262 to 327 months) and imposed a sentence of 168
months’ imprisonment. Neither Howard nor the government objected to the
sentence imposed or the manner in which the sentence was announced.
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II. DISCUSSION
On appeal and for the first time, Howard argues that the district court plainly
erred in finding that his prior Florida drug convictions, under Fla. Stat. § 893.13,
qualified as either “controlled substance offenses” under U.S.S.G. § 4B1.1’s career
offender provision or “felony drug offenses” under the 21 U.S.C. § 841(b)(1)(B)
enhancement. He argues that § 4B1.2’s definition of a “controlled substance
offense” and 21 U.S.C. § 802(44)’s definition of a “felony drug offense”
encompass only substances that are federally controlled, whereas Fla. Stat.
§ 893.13 criminalizes substances that are both federally and state controlled but
also some substances that are only state controlled. Relying on the categorical
approach, Howard contends that the term “controlled substance” in Fla. Stat.
§ 893.13 is indivisible and overbroad, and thus this Court must presume that his
prior Florida drug convictions all rested upon illegal substances that are not
federally controlled. Therefore, Howard argues that, because such Florida drug
offenses do not satisfy the definition of a “controlled substance offense” or “felony
drug offense,” the district court plainly erred in sentencing him as a career offender
and under the § 841(b)(1)(B) enhancement.
A. Standard of Review
We generally review the application of law to sentencing issues de novo.
United States v. Mejias, 47 F.3d 401, 403 (11th Cir. 1995). However, where a
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defendant raises a sentencing argument for the first time on appeal, we review only
for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Under the plain error rule, we will reverse a district court’s decision only if there
is: “(1) error, (2) that is plain, [] (3) that has affected the defendant’s substantial
rights,” and (4) that “seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” United States v. Hesser, 800 F.3d 1310, 1324 (11th Cir.
2015). “An error is plain if it is obvious and clear under current law.” United
States v. Eckhardt, 466 F.3d 938, 948-49 (11th Cir. 2006) (concluding that
“[b]ecause neither this Circuit nor any other has published an opinion addressing
this issue, the district court did not commit plain error” when it imposed a
sentencing enhancement). “When the explicit language of a statute or rule does
not specifically resolve an issue, there can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving it.” United
States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks omitted).
B. Career Offender Enhancement
Under U.S.S.G. § 2D1.1, the base offense level for Howard’s instant federal
offense of possession with the intent to distribute 28 grams of more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1), is 24. See U.S.S.G. § 2D1.1(c)(8).
However, that offense level automatically increases to a level dictated by the chart
found in § 4B1.1(b) if the defendant qualifies as a career offender under
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§ 4B1.1(a). U.S.S.G. § 4B1.1(a) & (b). Similarly, a career offender’s criminal
history category is always VI. Id. § 4B1.1(b).
A defendant is a career offender under the Guidelines if: (1) he was at least
18 years old at the time he committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a “crime of violence” or a
“controlled substance offense”; and (3) he has at least two prior felony convictions
for either a “crime of violence” or a “controlled substance offense.” Id.
§ 4B1.1(a). The Guidelines define a “controlled substance offense” as “an offense
under federal or state law, punishable by imprisonment for a term exceeding one
year, that 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.” Id. § 4B1.2(b) (emphasis
added).
Howard’s relevant drug convictions are under Fla. Stat. § 893.13(1)(a),
which provides that “a person may not sell, manufacture, or deliver, or possess
with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat.
§ 893.13(1)(a).4 This Court expressly held in United States v. Smith, 775 F.3d
4 Howard does not dispute that his drug convictions are all felonies under Florida law and punishable by more than one year of imprisonment. For example, a violation of § 893.13(1)(a) involving cocaine is a second-degree felony, punishable by up to 15 years’ imprisonment. Fla. Stat. § 893.13(1)(a)(1); Fla. Stat. § 775.082(3)(d); Fla. Stat. § 893.03(2)(a)(4). 11 Case: 18-12109 Date Filed: 04/02/2019 Page: 12 of 16
1262, 1268 (11th Cir. 2014), that a drug conviction under Fla. Stat. § 893.13(1) is a
“controlled substance offense” under the career offender provision in U.S.S.G.
§ 4B1.2(b). See also United States v. Pridgeon, 853 F.3d 1192, 1197-98 (11th
Cir.) (following Smith), cert. denied, 138 S. Ct. 215 (2017). In Smith, the
defendant was sentenced as a career offender under § 4B1.1(a) because his prior
Florida convictions for possession of marijuana with intent to sell and possession
of cocaine with intent to sell, both in violation of Fla. Stat. § 893.13(1)(a), were
“controlled substance offenses.” 775 F.3d at 1265. In addressing the defendant’s
argument, this Court determined that the definition of a “controlled substance
offense” under § 4B1.2(b) did not require that a predicate state offense include an
element of mens rea with respect to the illicit nature of the controlled substance,
and, therefore, Fla. Stat. § 893.13(1) qualified as a “controlled substance offense.”
Id. at 1268. Smith involved the same definition of “controlled substance offense”
in § 4B1.2(b) that applies to Howard’s case. See Smith, 775 F.3d at 1267-68;
U.S.S.G. § 4B1.2(b) (2016).
Here, Howard’s challenge to the district court’s determination that his prior
convictions under Fla. Stat. § 893.13(1)(a)(1) constitute “controlled substances
offenses” is precluded by our binding precedent in Smith. See id. We recognize
that Howard contends that the prior panel precedent rule is of little value in his
case because this Court has not considered his particular argument that Fla. Stat.
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§ 893.13 is indivisible and criminalizes substances that are not federally
controlled.5 However, “a prior panel’s holding is binding on all subsequent panels
unless and until it is overruled or undermined to the point of abrogation by the
Supreme Court or by this court sitting en banc.” United States v. Archer, 531 F.3d
1347, 1352 (11th Cir. 2008). “[A] prior panel precedent cannot be circumvented
or ignored on the basis of arguments not made to or considered by the prior panel.”
Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006).
In light of our binding precedent, the district court properly concluded that
Howard’s prior Florida 2009 possession of cocaine with intent to sell offense and
2011 sale of cocaine offenses, all violations of Fla. Stat. § 893.13(1)(a)(1),
qualified as “controlled substance offenses” under U.S.S.G. § 4B1.2(b). See
Smith, 775 F.3d at 1268. Because Howard had at least two convictions for
“controlled substance offenses,” the district court did not err in determining that
Howard was a career offender under § 4B1.1. 6
5 We reject Howard’s argument that “controlled substance” under § 4B1.2 refers only to those illegal substances that are federally controlled. Instead, § 4B1.2 explicitly refers to “controlled substance offense” as an “offense under federal or state law.” U.S.S.G. § 4B1.2(b). In any event, even if the text of § 4B1.2 is somehow ambiguous elsewhere as Howard argues, the main decision in this regard that Howard cites is materially distinguishable because cocaine is both federally and state controlled and his prior Florida convictions were for cocaine-related crimes, whereas the decision Howard cites involved a state controlled substance that was not federally controlled. See, e.g., United States v. Townsend, 897 F.3d 66, 68, 74-75 (2d Cir. 2018) (concluding that a defendant’s prior state conviction for the sale of Human Chorionic Gonadotropin (“HCG”) could not be a predicate offense for an enhanced sentence under U.S.S.G. § 2K2.1(a) because the sale of HCG is only criminalized by the state). 6 Howard actually has three qualifying controlled substance offenses–two sale of cocaine 13 Case: 18-12109 Date Filed: 04/02/2019 Page: 14 of 16
C. 21 U.S.C. § 841(b)(1)(B) Enhancement
Returning to Howard’s instant federal offense, we discuss the relevant
statutory mandatory minimum sentence. Howard was convicted of possession with
intent to distribute 28 grams or more of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). Ordinarily, the penalty for Howard’s
conviction under § 841(a)(1) is a term of imprisonment of 5 to 40 years. 21 U.S.C.
§ 841(b)(1)(B)(iii). However, § 841(b)(1)(B) provides that where an individual
violates § 841(a)(1) after a prior conviction for a “felony drug offense” has become
final, the mandatory minimum corresponding term of imprisonment becomes ten
years to life. Id. § 841(b)(1)(B).
A “felony drug offense” is defined as “an offense that is punishable by
imprisonment for more than one year under any law of the United States or of a
State or foreign country that prohibits or restricts conduct relating to narcotic
drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21
U.S.C. § 802(44) (emphasis added). Cocaine is a narcotic drug. Id. § 802(17)(D).
To support a § 841(b)(1)(B) statutory mandatory minimum sentence, the
government must file an information notifying the defendant of the enhancement
and the prior convictions upon which it is based. 21 U.S.C. § 851(a)(1). The
government undisputedly did that in this case.
convictions and one possession of cocaine with intent to sell conviction. 14 Case: 18-12109 Date Filed: 04/02/2019 Page: 15 of 16
Here, Howard has not demonstrated that the district court erred, plainly or
otherwise, in determining that his five 2011 offenses for the sale and possession of
cocaine qualified as “felony drug offenses” for purposes of the § 841(b)(1)(B)
enhancement. 7 A “felony drug offense” under § 802(44) is defined to include an
offense that is punishable by imprisonment for more than one year under any state
law that prohibits conduct relating to narcotic drugs. 21 U.S.C. § 802(44).
Howard’s 2011 offenses were under both Fla. Stat. § 893.13(1)(a)(1)
prohibiting the sale of cocaine and Fla. Stat. § 893.13(6)(a) prohibiting the
possession of cocaine. Fla. Stat. §§ 893.13(1)(a), (6)(a). A violation of
§ 893.13(1)(a)(1) involving cocaine is punishable by up to 15 years’ imprisonment,
and a violation of § 893.13(6)(a) involving cocaine is punishable by up to 5 years’
imprisonment. Fla. Stat. §§ 893.13(1)(a)(1), (6)(a); Fla. Stat. §§ 775.082(3)(d),
(e); Fla. Stat. § 893.03(2)(a)(4). Therefore, the district court did not err in
determining that Howard was subject to a ten-year statutory mandatory minimum
term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B). 8
7 The government gave the § 851 notice as to the five 2011 offenses but not as to the one 2009 offense. 8 Alternatively, the government argues that Howard is not entitled to relief because he invited the district court to sentence him as a career offender and pursuant to the enhancement under § 841(B)(1)(b). We need not address this argument. Even if Howard invited his sentence enhancements, Howard has not shown that the district court erred in imposing them. 15 Case: 18-12109 Date Filed: 04/02/2019 Page: 16 of 16
III. CONCLUSION
For the reasons stated, we affirm Howard’s 168-month sentence.
AFFIRMED.