United States v. Bryant Eubanks ( 2009 )


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                 IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                          FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                            ________________________ ELEVENTH CIRCUIT
                                                                 JUNE 19, 2009
                                  No. 08-16575                 THOMAS K. KAHN
                              Non-Argument Calendar                CLERK
                            ________________________
    
                        D. C. Docket No. 07-60285-CR-WPD
    
    UNITED STATES OF AMERICA,
    
    
                                                                    Plaintiff-Appellee,
    
                                       versus
    
    BRYANT EUBANKS,
    
                                                              Defendant-Appellant.
    
    
                            ________________________
    
                     Appeal from the United States District Court
                         for the Southern District of Florida
                           _________________________
    
                                   (June 19, 2009)
    
    Before MARCUS, WILSON and ANDERSON, Circuit Judges.
    
    PER CURIAM:
    
         Bryant Eubanks appeals his 188-month sentence imposed after he pled
    guilty to violating 21 U.S.C. § 841(a)(1), which prohibits possessing with intent to
    
    distribute 5 or more grams of cocaine base. Eubanks raises two issues on appeal.
    
    First, he argues that his Florida state convictions for robbery, attempted robbery,
    
    and escape should count as only one conviction under the career offender
    
    guideline. Second, he argues that the district court erred by failing to identify the
    
    predicate offenses that it relied on to find that he qualified as a career offender.
    
    Both arguments fail. We address each in turn.
    
                                                I.
    
          Eubanks was convicted in Florida of robbery, attempted robbery, and
    
    escape. He argues that the three convictions count as only one under the Florida
    
    habitual offender statute because he was sentenced on all three offenses
    
    simultaneously. Consequently, he argues, the offenses should count as only one
    
    conviction for career offender purposes.
    
          We “review[] the district court’s application and interpretation of the
    
    sentencing guidelines under the de novo standard of review . . . .” United States v.
    
    Rhind, 
    289 F.3d 690
    , 693 (11th Cir. 2002) (citation omitted). “We review for clear
    
    error a factual finding that prior convictions are unrelated . . . , but we review de
    
    novo a district court's determination of whether two crimes constitute two separate
    
    felonies . . . .” United States v. Wilks, 
    464 F.3d 1240
    , 1243 (11th Cir. 2006)
    
    
    
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    (citations omitted). We review for plain error objections or arguments not raised in
    
    the district court. United States v. Evans, 
    478 F.3d 1332
    , 1338 (11th Cir. 2007)
    
    (citation omitted).
    
          To establish plain error, a defendant must show there is (1) error, (2)
          that is plain, and (3) that affects substantial rights. If all three
          conditions are met, we may exercise our discretion to recognize a
          forfeited error, but only if the error seriously affect[s] the fairness,
          integrity or public reputation of judicial proceedings.
    
    Id.
    
          “Federal law, not state law, controls the application of the Sentencing
    
    Guidelines.” United States v. Madera-Madera, 
    333 F.3d 1228
    , 1231 n.2 (11th Cir.
    
    2003) (citation omitted). The U.S. Sentencing Guidelines provide that
    
          [a] defendant is a career offender if (1) the defendant was at least
          eighteen years old at the time the defendant committed the instant
          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 ENTENCING G UIDELINES M ANUAL § 4B1.1(a) (2008). Section 4B1.2(c)
    
    states that “‘two prior felony convictions’ means . . . the sentences for at least two
    
    of the . . . felony convictions are counted separately under . . . § 4A1.1(a), (b), or
    
    (c).” Id. § 4B1.2(c). Section 4A1.2(a)(2) states that
    
          [i]f the defendant has multiple prior sentences, determine whether
          those sentences are counted separately or as a single sentence. Prior
          sentences always are counted separately if the sentences were imposed
    
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          for offenses that were separated by an intervening arrest (i.e., the
          defendant is arrested for the first offense prior to committing the
          second offense). If there is no intervening arrest, prior sentences are
          counted separately unless (A) the sentences resulted from offenses
          contained in the same charging instrument; or (B) the sentences were
          imposed on the same day. Count any prior sentence covered by (A) or
          (B) as a single sentence.
    
    Id. § 4A1.2(a)(2) (citation omitted).
    
          Eubanks argued before the district court that he should not be classified as a
    
    career offender. But he failed to argue that Florida law should control the issue
    
    until filing his initial brief now before us. Consequently, his state-law argument
    
    will be reviewed for plain error.
    
          Eubanks was arrested for robbery on October 22, 1993, attempted robbery
    
    on October 22, 1995, and escape on December 11, 1995. He was convicted of
    
    robbery and escape on August 12, 1996 and attempted robbery on August 26,
    
    1996. Since those three offenses were separated by intervening arrests, the district
    
    court properly counted separately the sentences imposed for Eubanks’ convictions
    
    for those offenses. Therefore, it did not plainly err by concluding that Eubanks
    
    qualified as a career offender under the U.S. Sentencing Guidelines.
    
                                             II.
    
          Eubanks next argues that the district court erred by not identifying the
    
    predicate offenses it used to determine that he was a career offender. He submits
    
    
    
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    that his crime of escape may no longer be a crime of violence in light of Begay v.
    
    United States, 
    553 U.S.
    __, 
    128 S. Ct. 1581
     (2008), and Chambers v. United States,
    
    
    555 U.S.
    __, 
    129 S. Ct. 687
     (2009). He argues that we should remand for a finding
    
    of whether his escape offense was used to determine that he was a career offender.
    
          Ordinarily, we review de novo “the district court’s decision to classify a
    
    defendant as a career offender . . . .” United States v. Gibson, 
    434 F.3d 1234
    , 1243
    
    (11th Cir. 2006) (citation omitted). Our review here is for plain error, however,
    
    because Eubanks did not raise this issue before the district court. The court
    
    sufficiently identified Eubanks’ robbery, attempted robbery, and escape as the
    
    predicate offenses on which it relied to conclude that Eubanks was a career
    
    offender. Even if Eubanks’ escape conviction was not a crime of violence, he still
    
    had the required two predicate felony convictions to qualify as a career offender.
    
    Thus, the district court did not plainly err by finding that Eubanks qualified as a
    
    career offender. We affirm Eubanks’ 188-month sentence.
    
          AFFIRMED.
    
    
    
    
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