United States v. Archer , 243 F. App'x 564 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 19, 2007
No. 07-11488 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00205-CR-J-25-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN LAMAR ARCHER,
a.k.a. Bookbag,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 19, 2007)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Bryan Lamar Archer appeals his 188-month sentence for drug trafficking.
Archer argues that the district court erred in determining that he qualifies as a
career offender, pursuant to United States Sentencing Guidelines § 4B1.1, based, in
part, on a prior conviction for carrying a concealed weapon. For the reasons stated
below, we affirm.
I. BACKGROUND
A federal grand jury returned an indictment charging Archer with conspiracy
to distribute and possess with intent to distribute five grams or more of crack
cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B) (count 1),
distribution of crack cocaine (count 2), distribution of five or more grams of crack
cocaine (counts 3 and 4), and possession with intent to distribute five or more
grams of crack cocaine (count 5) all in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1). Archer pleaded guilty to these charges.
Prior to sentencing, a probation officer prepared a presentence investigation
report (“PSI”). In the PSI, the probation officer determined that Archer’s prior
conviction for carrying a concealed weapon constituted a “crime of violence”
pursuant to U.S.S.G. § 4B1.2(a) and that his prior Florida felony conviction for
selling crack cocaine was a “controlled substance offense” pursuant to U.S.S.G.
§ 4B1.2(b), thus making Archer a “career offender” under U.S.S.G. § 4B1.1(a).
The probation officer therefore recommended an enhanced total offense level of 31,
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after reducing the level for acceptance of responsibility, and an enhanced criminal
history category of VI and calculated an advisory guidelines range of 188 to 235
months’ imprisonment.
At his March 2007 sentencing hearing, Archer objected to the probation
officer’s determination that his prior conviction for carrying a concealed weapon
constituted a “crime of violence” under U.S.S.G. § 4B1.2(a). The district court
overruled the objection and adopted the probation officer’s determination that
Archer is a career offender pursuant to U.S.S.G. § 4B1.1(a). The district court
sentenced Archer to 188 months’ incarceration. This appeal follows.
II. DISCUSSION
We review the district court’s application of the Sentencing Guidelines de
novo. United States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995).
A defendant qualifies as a career offender if
(1) the defendant was at least eighteen years old at the time the
defendant 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) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled
substance offense.
U.S.S.G. § 4B1.1(a). A “crime of violence” as used in subsection (2) is defined in
section 4B1.2 as
any offense under federal or state law, punishable by imprisonment for
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a term exceeding one year, that (1) has as an element the use,
attempted use, or threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
Archer argues that the crime of carrying a concealed weapon does not sufficiently
present a “potential risk of physical injury to another” to satisfy this definition of
crime of violence and that the district court therefore erred in considering him a
career offender. Archer concedes, however, that this argument is foreclosed by
binding precedent of this court.
In United States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998), this court
addressed this very issue and concluded that carrying a concealed weapon in
violation of Florida law is a crime of violence pursuant to U.S.S.G. § 4B1.2(a)(2),
and that a prior conviction for such a crime may appropriately determine career
offender status for sentencing purposes. This court reiterated that holding in United
States v. Adams, 316 F.3d 1196,1197 (11th Cir. 2003) and refused to revisit an
issue so definitively decided previously. Adams emphasized that “[t]he law of this
circuit is ‘emphatic’ that only the Supreme Court or this court sitting en banc can
judicially overrule a prior panel decision.” Id. at 1197 n.1 (quoting Cargill v.
Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997)).
We rely on the established law of this court and conclude that the district
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court correctly determined that Archer’s previous conviction for carrying a
concealed weapon constitutes a “crime of violence” and that based on that prior
conviction, along with his other prior conviction for a “controlled substance
offense,” he may be considered a career criminal under U.S.S.G. § 4B1.1(a). The
district court therefore did not err by sentencing Archer as a career criminal
pursuant to U.S.S.G. § 4B1.1.
III. CONCLUSION
For the foregoing reasons, Archer’s sentence is affirmed.
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