United States v. Ronald Dees , 142 F. App'x 362 ( 2005 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    MAY 6, 2005
    No. 04-12952                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 04-00008-CR-3-LAC
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RONALD DEES,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (May 6, 2005)
    Before BIRCH, CARNES and BARKETT, Circuit Judges.
    PER CURIAM:
    Ronald Dees appeals his ninety-four-month sentence for being a felon in
    possession of a firearm in violation of 
    18 U.S.C. §§ 922
    (g)(1). We affirm.
    I.
    Dees first contends that the district court erred by concluding that it lacked
    authority to make his federal sentence run concurrently with his then-impending
    state sentence. A district court has authority to impose a sentence concurrent with
    a future state sentence, and its failure to recognize that authority is reversible error.
    United States v. McDaniel, 
    338 F.3d 1287
    , 1288 (11th Cir. 2003) (per curiam).
    Dees contends that the district court’s comment at sentencing—that it was “of the
    belief that you can’t run a sentence concurrent with a sentence that doesn’t
    exist”—reveals it misunderstood its authority and, therefore, erred.
    We will assume, without deciding, that Dees’ contention that the district
    court improperly failed to recognize its authority is correct, because any error by
    the district court was harmless anyway. First, the error itself did not affect Dees’
    ultimate sentence because, even had the district court recognized (and exercised)
    its authority to make Dees’ sentence concurrent to the impending state sentence,
    the state court would have been free to ignore that order and impose a consecutive
    sentence. See United States v. Andrews, 
    330 F.3d 1305
    , 1307–08 n.1 (11th Cir.
    2003) (“We fully recognize that the Supremacy Clause does not permit federal
    2
    courts to control how a state court sentences a defendant.”) Second, when the state
    court eventually sentenced Dees, it ran his state sentence concurrent with his
    federal sentence. See Appx. to Appellee’s Br. Thus, because any error by the
    district court did not affect Dees’ substantial rights, remand on that error is not
    warranted. Fed. R. Crim. P. 52(a); Williams v. United States, 
    503 U.S. 193
    , 203,
    
    112 S. Ct. 1112
    , 1120–21 (1992).
    II.
    Next, Dees contends that he is entitled to resentencing under Blakely v.
    Washington, 524 U.S. __, 
    124 S. Ct. 2531
     (2004), because the district court
    enhanced his sentence based on facts neither admitted by him nor found by a jury.1
    Because Dees raised this constitutional objection for the first time on appeal, we
    review it for plain error. United States v. Cotton, 
    535 U.S. 625
    , 631–32, 
    122 S. Ct. 1781
    , 1785 (2002). Under plain error review, “before an appellate court can
    correct an error not raised at trial there must be (1) error, (2) that is plain, and (3)
    that affects substantial rights.” 
    Id. at 631
    , 122 U.S. at 1785 (quotation and internal
    marks omitted).
    Under our recent decision in United States v. Rodriguez, __ F.3d __, No. 04-
    1
    After Dees filed his brief in this case, the Supreme Court applied the holding of Blakely
    to the federal sentencing guidelines in United States v. Booker, 543 U.S. __, 
    125 S. Ct. 738
    (2005).
    3
    12676 (11th Cir. Feb. 4, 2005), Dees has not shown that his sentence would have
    been different under the new Booker advisory regime. Therefore, Dees again
    cannot show that his substantial rights were affected.
    III.
    Finally, Dees argues that our precedent on the issue of whether “coincidental
    possession” of a firearm during the commission of another felony is sufficient to
    support the four-level enhancement under U.S.S.G. § 2K2.1(b)(5) is wrong
    because it is contrary to the language of the guidelines (and the holding of ten other
    circuits). Although he recognizes that we cannot overrule a prior panel decision,
    he raises the issue to preserve it for appeal to the Supreme Court.
    Dees correctly acknowledges that the prior precedent rule would prevent us
    from accepting his argument, were we to reach it. See United States v. Hogan, 
    986 F.2d 1364
    , 1369 (11th Cir. 1993) (“[I]t is the firmly established rule of this Circuit
    that each succeeding panel is bound by the holding of the first panel to address an
    issue of law, unless and until that holding is overruled en banc or by the Supreme
    Court.”). His challenge, however, is foreclosed for a more preliminary reason.
    Dees’ argument regarding § 2K2.1(b)(5) is misplaced because he did not actually
    receive the four-level enhancement under that sentencing provision. Instead, Dees’
    total adjusted offense level was based on a cross-reference found at §
    4
    2K2.1(c)(1)(A), which required the judge to sentence him based on § 2D1.1, a
    completely separate guidelines provision with its own offense-specific
    enhancements. Because Dees was found with between five and twenty grams of
    cocaine base, he was given a base offense level of 26 under § 2D1.1(c)(7). Then, a
    two-level (not four-level) enhancement was added under § 2D1.1(b)(1) for
    possessing a dangerous weapon. Thus, this Court’s precedent interpreting §
    2K2.1(b)(5) did not affect Dees’ sentence. Dees does not argue in his brief that the
    nearly identical language in § 2K2.1(c)(1), the cross-reference that enhanced his
    sentence, should be interpreted the same way he argues that language should be
    interpreted under § 2K2.1(b)(5).2
    AFFIRMED.
    2
    The cross-reference applies if a defendant possesses a firearm “in connection with”
    another offense, § 2K2.1(c)(1), while the four-level enhancement under § 2K2.1(b)(5) requires
    that the firearm be possessed “in connection with” a felony.
    5
    

Document Info

Docket Number: 04-12952; D.C. Docket 04-00008-CR-3-LAC

Citation Numbers: 142 F. App'x 362

Judges: Barkett, Birch, Carnes, Per Curiam

Filed Date: 5/6/2005

Precedential Status: Non-Precedential

Modified Date: 8/2/2023