United States v. Terrence Jermaine Neal , 520 F. App'x 794 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15419
Non-Argument Calendar
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D.C. Docket No. 6:12-cr-00100-GKS-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
TERRENCE JERMAINE NEAL,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 29, 2013)
Before HULL, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
The government appeals the 70-month sentence the district court imposed
after Terrance Neal pleaded guilty to one count of conspiracy to distribute and
possess with intent to distribute more than 500 grams of cocaine hydrochloride, in
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violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), and 846. On appeal, the
government argues that the district court erred by not imposing the statutory ten-
year mandatory-minimum sentence required for a violation of § 841(b)(1)(B) after
a prior conviction for a felony drug offense. After careful review, we vacate and
remand for resentencing.
We review constitutional questions and questions of statutory interpretation
de novo. United States v. Griffey, 589 F.3d 1363, 1365 n.3 (11th Cir. 2009).
At sentencing, a district court must normally consider various sentencing
factors, including the applicable guideline range and the pertinent policy
statements of the Sentencing Commission. 18 U.S.C. § 3553(a)(4)-(a)(5).
However, “[a] mandatory minimum sentence trumps an advisory Guideline
calculation and the various factors considered by district courts under 18 U.S.C. §
3553(a).” United States v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013).
The federal statute at issue provides for a penalty of not less than ten years
and not more than life imprisonment for any person whose violation of the statute
(1) involved 500 grams or more of a mixture or substance containing a detectable
amount of cocaine and (2) occurred “after a prior conviction for a felony drug
offense has become final.” 21 U.S.C. § 841(b)(1)(B)(ii)(II). A “felony drug
offense” is defined, inter alia, as “an offense that is punishable by imprisonment
for more than one year under any law of . . . a State.” Id. § 802(44). We have held
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that “what constitutes a ‘conviction’” under section 841(b)(1)(B) is a question of
federal sentencing law, rather than state law. United States v. Mejias, 47 F.3d 401,
403-04 (11th Cir. 1995). For federal sentencing purposes, a “prior plea of nolo
contendere with adjudication withheld in Florida state court is a ‘conviction’ that
supports an enhanced sentence under section 841(b)(1)(B).” Id. at 404.
To support a § 841(b)(1)(B) statutory enhancement, 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 defendant may
respond that the conviction was obtained in violation of the U.S. Constitution, and
bears the burden of proving the conviction’s constitutional infirmity by a
preponderance of the evidence. Id. § 851(c)(2). However, he may not “challenge
the validity of any prior conviction alleged under this section which occurred more
than five years before the date of the information alleging such prior conviction.”
Id. § 851(e). We have upheld the validity of § 851(e)’s limitations period. See
United States v. Williams, 954 F.2d 668, 673 (11th Cir. 1992) (holding that §
851(e)’s limitations period was constitutional because it was “reasonably tailored
to impose enhanced sentences on recidivists”).
The specific subsection of the Florida drug possession statute under which
Neal was convicted makes it unlawful “for any person to be in actual or
constructive possession of a controlled substance,” and provides that “[a]ny person
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who violates this provision commits a felony of the third degree.” Fla. Stat. Ann. §
893.13(6)(a). In Florida, a third-degree felony is punishable by a term of
imprisonment “not exceeding 5 years.” Fla. Stat. Ann. § 775.082(3)(d).
Here, the district court erred in imposing a 70-month sentence rather than the
120-month mandatory minimum. To begin with, we have squarely held that a
Florida state criminal proceeding in which adjudication was withheld following a
plea constitutes a “conviction” for purposes of the § 841(b)(1)(B) statutory
enhancement. Mejias, 47 F.3d at 404. Because Neal’s conviction for cocaine
possession under § 893.13(6)(a) was punishable by more than one year of
imprisonment, it constituted a “felony” drug offense, 21 U.S.C. § 802(44), and he
was subject to the 120-month mandatory minimum in § 841(b)(1)(B) following the
government’s filing of its § 851 notice.
We reject Neal’s remaining arguments -- first, that the district court’s
sentence violated the mandate to avoid sentencing disparities found in 18 U.S.C. §
3553(a). As we’ve made clear, the mandatory minimum trumps the advisory
guidelines and the district court’s obligation to consider sentencing factors under §
3553(a). Carillo-Ayala, 713 F.3d at 88. Neal’s challenge to the constitutionality of
§ 893.13(6)(a) also lacks merit. Among other things, Neal was statutorily barred
from challenging the validity of his Florida conviction. 21 U.S.C. § 851(e);
Williams, 954 F.2d at 674. Accordingly, we vacate and remand for resentencing.
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VACATED AND REMANDED.
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