United States v. Stoney Lester , 142 F. App'x 364 ( 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  •                                                         [DO NOT PUBLISH]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
    JUNE 6, 2005
    No. 04-13177                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D.C. Docket No. 02-00037-CR-WDO-5
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    STONEY LESTER,
    Defendant-Appellant.
    __________________________
    Appeal from the United States District Court
    for the Middle District of Georgia
    _________________________
    (June 6, 2005)
    ON PETITION FOR REHEARING
    Before ANDERSON, DUBINA and BLACK, Circuit Judges.
    PER CURIAM:
    The panel’s opinion in this case issued on April 29, 2005. The mandate was
    withheld pursuant to a request by an active judge. Appellant now moves for panel
    rehearing. Based on our conclusion we should have also considered Booker
    statutory error in the opinion, we GRANT the motion for rehearing and vacate our
    previous opinion.
    Stoney Lester appeals his sentence for possession with intent to distribute
    more than five grams of cocaine base, in violation of 
    21 U.S.C. § 841
    (a)(1),
    (b)(1)(C). He maintains the district court erred in (1) applying the career offender,
    obstruction of justice, and dangerous firearm enhancements, in light of Blakely v.
    Washington, 
    124 S. Ct. 2531
     (2004), (2) determining marijuana was a controlled
    substance for purposes of determining whether Lester was entitled to a career
    offender classification, (3) accepting the Pre-Sentence Investigation Report’s
    recommendation that Lester receive a two-level enhancement for both obstruction
    of justice and possessing a dangerous firearm, (4) not departing downward
    because Lester’s career offender enhancement, along with his Criminal History
    Category of VI, over-represented the likelihood he would commit future crimes,
    and (5) denying Lester’s request for an acceptance of responsibility adjustment.
    The district court did not err, and we affirm.
    2
    I. DISCUSSION
    A.    Blakely/Booker
    1.     Sixth Amendment
    Lester asserts the district court’s application of the career offender,
    obstruction of justice, and dangerous firearm enhancements violated his Sixth
    Amendment rights under Blakely, because the underlying facts were not submitted
    to a jury. Lester raises this issue for the first time on appeal. We review for plain
    error those issues in which timely objections were not made in the district court.
    United States v. Olano, 
    113 S. Ct. 1770
    , 1776 (1993); see also Fed. R. Crim. P.
    52(b). To prevail under a plain-error standard, the appellant must meet the
    following three requirements: (1) there must be an error; (2) that error must be
    plain; and (3) the plain error must affect substantial rights. Olano, 
    113 S. Ct. at 1776
    . Once the appellant proves these three elements, we may notice the error
    only if it “seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.” 
    Id. at 1779
    .
    a.     Career Offender Classification
    “In Almendarez-Torres v. United States [
    118 S. Ct. 1219
     (1998)], the
    Supreme Court held that the government need not allege in its indictment and need
    not prove beyond a reasonable doubt that a defendant had prior convictions for a
    3
    district court to use those convictions for purposes of enhancing a sentence.”
    United States v. Marseille, 
    377 F.3d 1249
    , 1257 (11th Cir.), cert. denied, 
    125 S. Ct. 637
     (2004). In Apprendi, the Supreme Court declined to revisit
    Almendarez-Torres and held “[o]ther than the fact of a prior conviction, any fact
    that increases the penalty for a crime beyond the prescribed statutory maximum
    must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v.
    New Jersey, 
    120 S. Ct. 2348
    , 2362–63 (2000).
    In Blakely, the Supreme Court applied the rule it announced in Apprendi to
    the State of Washington’s Sentencing Reform Act. 
    124 S. Ct. at
    2534–36. The
    Supreme Court struck down an upward departure imposed under Washington’s
    sentencing system that was based solely on judicial factfinding, clarifying that the
    relevant “statutory maximum for Apprendi purposes is the maximum a judge may
    impose solely on the basis of the facts reflected in the jury verdict or admitted by
    the defendant.” 
    Id.
     at 2534–38 (emphasis omitted).
    In United States v. Booker, 
    125 S. Ct. 738
    , 756 (2005), the Supreme Court
    concluded its holding in Blakely applied to the Federal Sentencing Guidelines and
    reaffirmed its holding in Apprendi: “Any fact (other than a prior conviction) which
    is necessary to support a sentence exceeding the maximum authorized by the facts
    4
    established by a plea of guilty or a jury verdict must be admitted by the defendant
    or proved to a jury beyond a reasonable doubt.”
    We recently held that Almendarez-Torres remains the law post-Booker. See
    United States v. Camacho-Ibarquen, 
    404 F.3d 1283
    , 1290 (11th Cir. 2005).
    Accordingly, insofar as the district court’s enhancement of Lester’s sentence under
    § 4B1.1 merely involved a determination Lester had prior convictions, the
    enhancement did not implicate Apprendi, Blakely, or Booker, as those cases
    exempt prior convictions from the types of facts that must be admitted by the
    defendant or proved to a jury beyond a reasonable doubt in order to support a
    sentence enhancement.
    b.     Obstruction of Justice and Dangerous Firearm Enhancements
    Lester’s argument that his obstruction of justice and dangerous firearm
    enhancements violate his Sixth Amendment rights also fails. As discussed below,
    the district court did not err when it determined Lester was entitled to a career
    offender classification. Because Lester’s guideline range was determined based
    on the career offender classification, and the obstruction of justice and dangerous
    firearm enhancements affected neither his statutory maximum as defined in
    Booker, nor his sentence, any potential error was harmless. See Booker, 125 S. Ct.
    at 769 (stating the harmless error doctrine still applies to sentencing issues).
    5
    2.     Statutory Error
    The Supreme Court indicated that both its “Sixth Amendment holding and
    . . . remedial interpretation of the Sentencing Act” must be applied “to all cases on
    direct review.” Booker, 125 S. Ct. at 769. We have clarified there are two types
    of Booker error: (1) Sixth Amendment, or constitutional, error based upon
    sentencing enhancements neither admitted by the defendant nor submitted to a jury
    and proven beyond a reasonable doubt; and (2) statutory error based upon
    sentencing under a mandatory Guidelines system. United States v. Shelton, 
    400 F.3d 1325
    , 1329–34 (11th Cir. 2005).
    Here, there is error that is plain because the district court treated the
    Guidelines as mandatory. See Shelton, 
    400 F.3d at 1331
    . In applying the third
    prong of the plain error test, “we ask whether there is a reasonable probability of a
    different result if the guidelines had been applied in an advisory instead of binding
    fashion by the sentencing judge in this case.” United States v. Rodriguez, 
    398 F.3d 1291
    , 1301 (11th Cir. 2005). “To establish the third prong takes something
    more than showing the district court sentenced within the Guidelines range and
    felt bound to do so, especially given that the Guidelines range remains an
    important factor in sentencing.” Shelton, 
    400 F.3d at 1332
    . The fact the district
    court sentenced the defendant to the bottom of the applicable Guidelines range
    6
    does not establish a reasonable probability the court would have imposed a lesser
    sentence under an advisory regime. United States v. Fields, 11th Cir., 2005, __
    F.3d __ (No. 04-12486 at *8–9, May 16, 2005).
    At sentencing, the district judge stated he was “sentencing [Lester] as a
    career offender because I think I’m required to do so. It’s not a matter of choice.”
    Additionally, Lester was sentenced to the lowest possible Guidelines sentence.
    However, that the district court sentenced within the Guidelines range and felt
    bound to do so, and that Lester was sentenced at the low end of the range is not
    enough to establish the third prong. See Shelton, 
    400 F.3d at 1332
    , Fields, No. 04-
    12486 at *8–9. Thus, Lester has not satisfied the third prong of the plain error test
    and cannot show plain error in being sentenced under a mandatory Guidelines
    system.
    B.    Controlled Substance and Career Offender Classification
    Lester next argues the district court erred in classifying him as a career
    offender because he did not have the requisite prior felony offenses as Georgia law
    does not recognize marijuana as a controlled substance. We review de novo the
    district court’s interpretation of the Guidelines. United States v. Rubio, 
    317 F.3d 1240
    , 1242 (11th Cir. 2003). The Guidelines provide a defendant is a career
    offender if: (1) he was at least 18 years old at the time he committed the instant
    7
    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 had at least two
    prior felony convictions of a crime of violence or controlled substance offense.
    U.S.S.G. § 4B1.1. A controlled substance offense is “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.” U.S.S.G. § 4B1.2(b).
    In United States v. Simon, the defendant argued he could not be deported
    because his Florida state law conviction for possessing cocaine was not a drug
    trafficking crime under Florida law. Simon, 
    168 F.3d 1271
    , 1272 n.2 (11th Cir.
    1999). We rejected his argument stating “trafficking crimes are defined under the
    CSA [Controlled Substances Act] and federal, not state, definitions govern under
    the Guidelines.” Id.; see also United States v. Tamayo, 
    80 F.3d 1514
    , 1523 (11th
    Cir. 1996) (the definition of a valid conviction for federal sentencing purposes is
    defined by federal, not state law).
    8
    Our reasoning in Simon and Tamayo is dispositive of the current case
    because federal law classifies marijuana as a controlled substance.1 We have also
    stated conspiracy to possess marijuana with intent to distribute is a controlled
    substance offense for purposes of the U.S.S.G. § 4B1.1 career criminal
    classification. United States v. Weir, 
    51 F.3d 1031
    , 1031 (11th Cir. 1995).
    Further, although Georgia law, according to Asberry v. State, 
    467 S.E.2d 225
    ,
    226–227 (Ga. App. 1996), does not consider marijuana a controlled offense,
    federal law, and not state law, governs under the federal Sentencing Guidelines.
    Simon, 168 F.3d at 1272 n.2; Tamayo, 
    80 F.3d at 1523
    . Thus, the district court did
    not err when it concluded Lester’s prior conviction for possessing and selling
    marijuana was a controlled substance offense for purposes of classifying him as a
    career offender.
    C.     Obstruction of Justice and Dangerous Firearm Enhancements
    Lester further maintains the district court erred in applying the dangerous
    firearm (U.S.S.G. § 2D1.1(b)(1)) and obstruction of justice enhancements
    (U.S.S.G. § 3C1.1). We review for clear error the district court’s findings of fact
    when it enhances a defendant’s sentence in obstruction of justice cases and for
    1
    The United States Code states that a controlled substance is any drug or substance listed in
    schedule I, II, III, IV, and V of 
    21 U.S.C. § 812
    . 
    21 U.S.C. § 802
    (6). Section 812 lists marijuana
    as a schedule I drug. 
    21 U.S.C. § 812
    , Schedule I (c)(10).
    9
    cases involving U.S.S.G. § 2D1.1(b)(1), and review the application of the
    sentencing guidelines de novo. United States v. Uscinski, 
    369 F.3d 1243
    , 1246
    (11th Cir. 2004) (obstruction cases); United States v. Gallo, 
    195 F.3d 1278
    , 1280
    (11th Cir. 1999) (§ 2D1.1(b)(1) cases).
    The probation department originally assigned Lester a base offense level of
    26, and with the additional four levels from the obstruction and dangerous firearm
    enhancements, his total offense level was 30. However, because Lester is a career
    offender with a statutory maximum of 40 years, his offense level had to be 34,
    pursuant to § 4B1.1(B).2 Therefore, if there was any error in applying the
    obstruction and dangerous firearm enhancements, it was harmless. See Fed. R.
    Crim. P. 52(a) (“Any error, defect, irregularity or variance which does not affect
    substantial rights shall be disregarded”).
    D.     Downward Departure
    Lester also contends the district court erred in denying his request for a
    downward departure because his career offender enhancement and his criminal
    history category of VI overstate his past crimes and the likelihood he will commit
    future crimes. He also maintains the district court violated Blakely because it
    2
    Although the statutory maximum for Lester’s offense is life, Lester was told at his plea
    hearing that the statutory maximum was 40 years. Both the district court and the parties relied on
    the 40 year maximum to determine the career offender offense level.
    10
    never submitted to a jury the issue of whether he was entitled to a downward
    departure. We lack jurisdiction to review a district court’s denial of a downward
    departure when the court bases its decision on its discretionary authority. United
    States v. Chase, 
    174 F.3d 1193
    , 1195 (11th Cir. 1999). We have jurisdiction,
    however, to review the defendant’s claim the district court mistakenly lacked
    discretionary authority to depart. 
    Id.
     When nothing in the record indicates
    otherwise, we will assume the district court understood it had the authority to
    depart downward, thus precluding review. 
    Id.
    Although the district court did not comment on why it did not grant the
    departure, we assume the district court was aware it had the authority to depart and
    chose to exercise its discretionary authority to deny the departure. Thus, we lack
    jurisdiction to consider Lester’s claim. See 
    id.
    E.    Acceptance of Responsibility
    Finally, Lester avers the district court erred in not applying the acceptance
    of responsibility adjustment. “We review the district court’s determination of
    acceptance of responsibility only for clear error.” United States v. Amedeo, 
    370 F.3d 1305
    , 1320 (11th Cir. 2004). Further, we will not set aside a district court’s
    determination a defendant is not entitled to a reduction for acceptance of
    11
    responsibility “unless the facts in the record clearly establish that a defendant has
    accepted personal responsibility.” 
    Id.
     at 1320–21.
    U.S.S.G. § 3E1.1 allows the district court to decrease the offense level by
    two levels “[i]f the defendant clearly demonstrates acceptance of responsibility for
    his offense.” The Guidelines state evidence of the defendant’s truthful admission
    of his criminal conduct “may be outweighed by conduct of the defendant that is
    inconsistent with such acceptance of responsibility. A defendant who enters a
    guilty plea is not entitled to an adjustment under this section as a matter of right.”
    U.S.S.G. § 3E1.1, comment. (n.3). Moreover, the guidelines also state that, an
    enhancement for obstruction of justice (§ 3C1.1) generally indicates the defendant
    has not accepted responsibility for his criminal conduct, however, extraordinary
    cases may exist “in which adjustments under both §§ 3C1.1 and 3E1.1 may
    apply.” U.S.S.G. § 3E1.1, comment. (n.4). The sentencing judge has discretion to
    determine whether a defendant receives the two level reduction. United States v.
    Thayer, 
    204 F.3d 1352
    , 1358 (11th Cir. 2000). Since a defendant’s continued use
    of illegal drugs constitutes a continuation of the drug offense for which he was
    convicted, the district court’s denial of an adjustment for acceptance of
    responsibility is not clearly erroneous. United States v. Matthews, 
    168 F.3d 1234
    ,
    1250 (11th Cir. 1999).
    12
    The district court did not clearly err when it accepted the probation
    department’s recommendation that Lester not receive an adjustment for acceptance
    of responsibility. At Lester’s pre-trial release revocation hearing, the Government
    provided testimony and lab evidence that Lester, while on pre-trial release, tested
    positive for cocaine use on two separate occasions. Because a district court can
    use its discretion to deny an acceptance of responsibility adjustment based on the
    defendant’s continued illegal drug use, the district court did not clearly err when it
    denied Lester’s request for an acceptance of responsibility adjustment. See
    Thayer, 
    204 F.3d at 1358
    ; Matthews, 
    168 F.3d at 1250
    .
    II. CONCLUSION
    The district court did not err in applying the career offender, obstruction of
    justice, and dangerous firearm enhancements, or in denying Lester’s request for an
    acceptance of responsibility adjustment. We lack jurisdiction to review the district
    court’s denial of downward departure.
    AFFIRMED.
    13