United States v. Walter James Barnes, Jr. , 280 F. App'x 910 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 6, 2008
No. 06-14840
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00095-CR-2-LSC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER JAMES BARNES, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 6, 2008)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Walter Barnes appeals his 180 month sentence following his guilty plea for
possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). After Barnes
pleaded guilty, the district court determined that his prior state conviction for first
degree marijuana possession qualified as a controlled substance offense and
applied a base offense level of 24 pursuant to §§ 2K2.1(a)(2) and 4B1.2(b) of the
sentencing guidelines. The district court also concluded that the marijuana
conviction qualified as a third serious drug offense under the Armed Career
Criminal Act and enhanced Barnes’ offense level to 33 pursuant to § 4B1.4,
resulting in a total offense level of 30 after a reduction for acceptance of
responsibility. With a criminal history category of IV, Barnes’ guideline range
was 135–165 months. Because this range fell below the mandatory fifteen year
minimum term of imprisonment set by the ACCA, however, the district court
sentenced Barnes to 180 months in prison. Barnes contends on appeal that his
prior conviction for first degree marijuana possession under Ala. Code § 13-A-12-
213(a)(1) does not qualify as a third predicate “serious drug offense” under the
ACCA.1
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The government contends that Barnes waived any arguments relating to the application
of the ACCA because his brief to this Court argues only that his prior Alabama state court
conviction for first degree marijuana possession is not a “controlled substance offense” under §
4B1.2(b) of the sentencing guidelines. Because it does not affect our decision, we will assume
without deciding that Barnes’ § 4B1.2 argument does raise the ACCA issues.
2
We review de novo whether a prior conviction is a serious drug offense
within the meaning of the ACCA. United States v. James, 430 F.3d 1150, 1153
(11th Cir. 2005), aff’d on other grounds, U.S. , 127 S. Ct. 1586 (2007).
Section 922(g) of Title 18 of the United States Code prohibits any person
who has previously been convicted of a crime punishable by imprisonment for a
term exceeding one year from possessing any firearm. 18 U.S.C. § 922(g).
Pursuant to § 924(e)(1), any person who violates § 922(g) and has three prior
convictions “for a violent felony or a serious drug offense, or both, committed on
occasions different from one another” shall be imprisoned for not less than fifteen
years. 18 U.S.C. § 924(e)(1). Section 924(e) defines the term “serious drug
offense” as including, among other things, “an offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or distribute,
a controlled substance . . . , for which a maximum term of imprisonment of ten
years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Under Ala. Code § 13-A-12-213, a person commits the crime of first degree
marijuana possession if: (1) he possesses marijuana for other than personal use; or
(2) he possesses marijuana only for his personal use after having previously been
convicted of unlawful possession of marijuana in the second degree or unlawful
possession of marijuana for personal use. Ala. Code § 13A-12-213(a). Barnes
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concedes that he was convicted under the first subsection for possessing marijuana
“for other than personal use,” which resulted in a sentence of one year and one day
in prison. The determinative issue in this case, therefore, is whether the district
court properly concluded that a prior conviction for possession of marijuana “for
other than personal use” qualifies as a “serious drug offense” under § 924(e).
When determining whether a particular conviction qualifies as a serious
drug offense within the meaning of § 924(e), courts are generally limited to a
formal categorical approach, which looks “only to the fact of conviction and the
statutory definition of the prior offense,” instead of the actual facts underlying the
defendant’s prior conviction. Taylor v. United States, 496 U.S. 575, 602, 110 S.
Ct. 2143, 2160 (1990); see also Shepard v. United States, 544 U.S. 13, 15, 125 S.
Ct. 1254, 1257 (2005); James, 430 F.3d at 1154; United States v. Breitweiser, 357
F.3d 1249, 1254 (11th Cir. 2004). The purpose of limiting sentencing courts to
this categorical approach is that it avoids the “practical difficulties and potential
unfairness of a factual approach.” Taylor, 496 U.S. at 601, 110 S. Ct. at 2159; see
also Breitweiser, 357 F.3d at 1254 (“The danger of having to conduct ‘mini-trials’
on a defendant’s prior conviction counsels against looking beyond the statute of
conviction.”).
However, there are some narrow exceptions to this general rule, and Barnes
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contends that his prior marijuana conviction under Ala. Code § 13A-12-213(a)(1)
falls within the ambiguity exception to the categorical approach. In explaining the
ambiguity exception, we have recognized that a district court may look to the facts
underlying a prior conviction “where the judgment of conviction and statute are
ambiguous, i.e., the determination whether a prior conviction is a qualifying
offense from the face of the judgment itself is impossible.” United States v.
Aguilar-Ortiz, 450 F.3d 1271, 1273 (11th Cir. 2006) (remanding for resentencing
where a factual inquiry was required to determine whether the defendant’s prior
conviction qualified as a “drug trafficking offense” under § 2L1.2(b)(1)(B) of the
sentencing guidelines).
An ambiguity occurs, for example, “where the statutory language of the
prior conviction ‘encompasse[s] some offenses that would satisfy the enhancement
statute and others that would not.’” Breitweiser, 357 F.3d at 1255 (quoting United
States v. Fulford, 267 F.3d 1241, 1249 (11th Cir. 2001)). Even in instances where
we have recognized that a sentencing court is permitted to go beyond the
categorical approach, however, we have held that the court may rely on only a
limited set of materials—including the charging document, written plea
agreement, transcript of the plea colloquy, and any explicit factual findings of the
trial judge to which the defendant assented. Aguilar-Ortiz, 450 F.3d at 1273–74.
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In arguing that the look-behind approach is appropriate in this case, Barnes
principally relies upon the Aguilar-Ortiz case. The decision in that case, however,
does not support Barnes’ contention. In Aguilar-Ortiz, we determined that a
Florida statute prohibiting the solicitation of the delivery of drugs was ambiguous
and required the district court to go beyond the formal categorical approach to
determine if the defendant’s prior conviction qualified as a “drug trafficking
offense” within the meaning of § 2L1.2(b)(1)(B) of the sentencing guidelines. 450
F.3d at 1276. In reaching this conclusion, we noted that defendants could be
found guilty of the Florida solicitation crime “on the basis of a wide range of
conduct,” including the solicitation of large quantities of narcotics for
redistribution or the solicitation of only a minuscule amount of narcotics solely for
personal use. Id. at 1275.
The Florida statute in Aguilar-Ortiz was so ambiguous that we were unable
to say as a categorical matter that all solicitation convictions under it either did or
did not qualify as drug trafficking offenses under the sentencing guidelines. Id. at
1276; see also United States v. Greer, 440 F.3d 1267, 1273 (11th Cir. 2006)
(noting that the defendant’s convictions for making terroristic threats under a
Georgia statute did “not, without more, prove that he had been convicted of a
violent felony for ACCA purposes” because the state statute prohibits both violent
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and nonviolent conduct); Breitweiser, 357 F.3d at 1255 (determining that the
district court had properly looked past the defendant’s conviction under a New
Jersey statute prohibiting the endangerment of child welfare, because it was
impossible to determine from the face of the statute whether it qualified as a “prior
sex offense conviction” under 18 U.S.C. § 2247 since a defendant, who may or
may not have had sexual contact with a minor, could be convicted under the
statute); United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995) (per curiam)
(finding that the district court had properly looked behind a previous conviction
under a Florida burglary statute in determining whether it constituted a “crime of
violence” under § 4B1.1 of the sentencing guidelines because the state statute
“encompasses some conduct which constitutes a crime of violence and some
which does not”).
Unlike the Florida statute in Aguilar-Ortiz, the language of the Alabama
statute prohibiting the possession of marijuana “for other than personal use” in this
case is not ambiguous. The phrase “for other than personal use” means that a
defendant does more than merely possess marijuana for his own use—that is, he
intends to distribute it or to possess it with the intent to distribute. See Ala. Code
§ 13A-12-214 (making the possession of marijuana for “personal use only” a Class
A misdemeanor); Watley v. State, 568 So. 2d 852, 854 (Ala. Cr. App. 1989)
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(noting that there “is no offense outlined in . . . § 13A-12-213 . . . whose enacting
clause defines the proscribed conduct merely in terms of ‘possession of
marijuana’” and determining that the phrase “for other than personal use” is an
“inseparable ingredient[] of the offense”). Indeed, when asked by the district
court, Barnes’ attorney could not provide an alternative interpretation of the
statute that would permit the inference that he did not intend to distribute the
marijuana. Nor can we. Unlike in Aguilar-Ortiz, therefore, a conviction under the
statute at issue in this case cannot be based on possession solely for personal use.
See Aguilar-Ortiz, 450 F.3d at 1275.
Because first degree marijuana possession in violation of Ala. Code § 13A-
12-213 is a Class C felony, it carries with it a maximum term of imprisonment of
ten years, see Ala. Code §§ 13A-12-213(b) & 13A-5-6(a)(3), which meets the
requirements of § 924(e)(2)(A)(ii)’s definition of a “serious drug offense.”
Furthermore, as we discussed earlier, § 13A-12-213’s description of the offense as
possession “for other than personal use” necessarily implies that a defendant
possessed marijuana with the intent to distribute it and thereby committed a
serious drug offense. Because the plain language of the statute, read against the
judgment, compels this conclusion, we cannot refer to any other material to
determine whether Barnes’ conviction qualifies as a serious drug offense. The
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district court, therefore, properly treated Barnes’ conviction for first degree
marijuana possession as a serious drug offense and applied the mandatory fifteen
year statutory minimum sentence under the ACCA. Accordingly, we affirm
Barnes’ sentence.
AFFIRMED.
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