United States v. Cleveland Webster , 159 F. App'x 134 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 15, 2005
No. 05-12061 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00022-CR-WDO-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEVELAND WEBSTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(December 15, 2005)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Cleveland Webster appeals his 188-month sentence for possession with
intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). On appeal,
Webster argues that the district court violated his due process rights when it
classified him as a career offender and enhanced his sentence under U.S.S.G.
§ 4B1.1.1 After review, we affirm Webster’s sentence.
At sentencing, the district court concluded that Webster qualified as a career
offender based on Webster’s 1982 conviction for burglary and his 1989 conviction
for robbery by force and motor theft. Webster’s appeal addresses only his 1982
burglary conviction.
On appeal, Webster contends that the district court’s reliance on his 1982
burglary conviction violated his due process rights under the Fifth and Fourteenth
Amendments because (1) Webster was 16 years old when he committed that
offense and 17 years old when he was convicted and (2) the conviction was over
21 years old at the time of sentencing for the instant offense. In the district court,
Webster did not argue that use of the 1982 burglary conviction violated his due
process rights. Rather, Webster argued that it was improper to count his 1982
burglary conviction for purposes of determining his career offender status because
he had received ineffective assistance of counsel during those proceedings.
Therefore, he brings this due process challenge for the first time on appeal.2
1
All citations are to the 2004 version of the Sentencing Guidelines
2
Webster does not raise on appeal other arguments he made to the district court at sentencing
– that his career offender sentence overstated his criminal history and was per se unreasonable under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and that the use of his 1994 conviction
2
We generally review questions of law arising under the Sentencing
Guidelines de novo. United States v. Crawford, 407 F.3d 1174, 1178 (11 th Cir.
2005). However, where, as here, the defendant did not raise the objection below,
we review for plain error. We correct plain error only when: (1) there is error; (2)
the error is plain; (3) it affects the defendant’s substantial rights; and (4) it
seriously affects the fairness, integrity or public reputation of the judicial
proceedings. United States v. Rodriguez, 398 F.3d 1291, 1298 (11 th Cir.), cert.
denied, 125 S. Ct. 2935 (2005). In Webster’s case, we find no error, plain or
otherwise.
A defendant is classified as a career offender under the guidelines “if (1) the
defendant was at least eighteen years old at the time the defendant committed the
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). Webster does not dispute that he meets
the three requirements set forth in U.S.S.G. § 4B1.1(a). That is, he does not
dispute that he was over 18 years old at the time he committed the instant offense,
for purposes of determining his career offender status violated his due process rights – and we do
not address them. See United States v. Scott, 426 F.3d 1324, 1328 (11th Cir. 2005) (failing to raise
issue on appeal results in abandonment of claim).
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that the instant conviction is a felony, controlled substance offense and that his
1982 burglary conviction is a crime of violence.3 Rather, Webster contends that,
because he was under 18 years old when he committed and was convicted of the
1982 burglary and because that conviction is over 21 years old, its use in
classifying him as a career offender violates his due process rights.
Webster does not cite any authority to support his claim that due process
prohibits sentencing enhancements based on prior convictions where either the
defendant was a minor when convicted or the conviction is more than 21 years old.
Due process requires that a sentencing scheme be rational and not based on an
arbitrary distinction. Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct.
1919, 1927 (1991). The longstanding practice of enhancing sentences based on
recidivism has withstood many constitutional challenges, including those based on
due process. See Parke v. Raney, 506 U.S. 20, 27, 113 S. Ct. 517, 522 (1992)
(noting that the Supreme Court has repeatedly upheld recidivism statutes in the
face of constitutional challenges). The few courts to have addressed the issue of
whether due process requires age limitations on prior convictions used to enhance
3
A “crime of violence” is defined as an offense punishable by a term of imprisonment
exceeding one year that either has as an element the use or attempted or threatened use of physical
force against another person “or is a burglary of a dwelling, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious potential risk of injury to another.”
U.S.S.G. § 4B1.2(a)(1)-(2).
4
sentences have answered this question in the negative. See, e.g., United States v.
Bredy, 209 F.3d 1193, 1197-98 (10 th Cir. 2000) (collecting cases). We agree with
these courts and conclude that imposing a sentencing enhancement based on a prior
conviction that is over 21 years old is not arbitrary and does not violate substantive
due process.
Likewise, due process is not implicated merely because Webster committed
and was convicted of the predicate offense while a juvenile. This Court has held
that, absent some evidence that a defendant was not afforded fundamental fairness
in juvenile proceedings, the use of a defendant’s juvenile conviction to enhance his
sentence does not violate his due process rights. See McCullough v. Singletary,
967 F.2d 530, 532-34 (11 th Cir. 1992). Examples of circumstances that might
show that the defendant was not afforded fundamental fairness include evidence
that the defendant was denied notice of the charges pending against him, that he
was denied the right to confront and cross-examine witnesses, that he was forced to
incriminate himself or that he was denied a jury trial. Id. at 532.
Here, Webster was prosecuted as an adult, not as a juvenile, for the 1982
burglary conviction, with representation by counsel and the other protections
afforded in adult criminal prosecutions. Furthermore, Webster has presented no
evidence to suggest that he was not afforded fundamental fairness during those
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proceedings. In sum, we see no basis for concluding that the district court violated
due process by imposing § 4B1.1(a)’s career offender enhancement based in part
on Webster’s 1982 burglary conviction.
Webster also argues that the district court abused its discretion when it
denied his request for a continuance at sentencing so he could pursue a state court
habeas challenge to the 1982 burglary conviction. We review the district court’s
denial of a request for continuance for abuse of discretion. United States v. Bowe,
221 F.3d 1183, 1189 (11 th Cir. 2000). To establish that a denial of a continuance
was reversible error, a defendant must show that the denial caused “specific
substantial prejudice.” United States v. Verderame, 51 F.3d 249, 251 (11 th Cir.
1995).
Webster has failed to show that the district court abused its discretion when
it denied his motion for continuance so that he could pursue a collateral challenge
to his 1982 burglary conviction in state court. Webster requested a continuance for
an unspecified period of time, professed a desire to mount a collateral attack more
than twenty years after the fact without demonstrating a plan for doing so
successfully, and gave the district court no reason to believe such a challenge could
be accomplished in a reasonable period of time. Additionally, Webster has failed
to articulate any specific, substantial prejudice he may suffer because of the denial
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of his motion for continuance. Based on the foregoing, the denial of a continuance
did not constitute an abuse of discretion.
AFFIRMED.
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