USCA11 Case: 22-11209 Document: 48-1 Date Filed: 04/03/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11209
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA CURRY,
a.k.a. Laz Breed,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cr-00039-AW-MAF-1
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2 Opinion of the Court 22-11209
____________________
Before WILLIAM PRYOR, Chief Judge, and JORDAN and NEWSOM,
Circuit Judges.
PER CURIAM:
Joshua Curry appeals his sentence of 324 months of impris-
onment after he pleaded guilty to conspiring to sex traffic a minor,
18 U.S.C. §§ 1594(c), 1591(a)(1), 1591(a)(2), sex trafficking of a mi-
nor,
id. §§ 2, 1591(a)(1), 1591(b)(2), and financially benefiting from
sex trafficking of a minor, id. §§ 2, 1591(a)(2), 1591(b)(2). Curry ar-
gues, for the first time, that the district court erred in calculating
his criminal history score by double counting his prior convictions
for armed robbery with a deadly weapon without considering the
provisions for grouping of offenses under the Sentencing Guide-
lines, United States Sentencing Guidelines Manual §§ 3D1.2,
4A1.1(e) (Nov. 2018). The government responds that the criminal-
history and grouping provisions of the Guidelines address separate
issues. We affirm.
Curry’s presentence investigation report grouped his three
counts of conviction because they involved the same minor victim
and multiple acts or transactions connected by a common criminal
objective or constituted part of a common scheme or plan. Id.
§ 3D1.2(b). The report calculated a total offense level of 38, a crim-
inal history category of IV, and an advisory guideline range of 324
to 405 months of imprisonment. Curry’s offense level included in-
creases for unduly influencing a minor to engage in prohibited
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22-11209 Opinion of the Court 3
sexual conduct, id. § 2G1.3(b)(2)(B), using a website and cellphone
to solicit and arrange the minor victim’s travel to engage in prohib-
ited sexual conduct, id. § 2G1.3(b)(3), and providing transportation
and other arrangements for the minor victim to engage in com-
mercial sex acts, id. § 2G1.3(b)(4). His offense level also included an
enhancement for being a repeat and dangerous sex offender against
minors, id. § 4B1.5(b)(1), and a reduction for accepting responsibil-
ity, id. § 3E1.1.
Curry’s prior convictions produced eight criminal history
points. Six of those points related to his prior convictions for four
counts of armed robbery with a deadly weapon and four counts of
kidnapping, for which Curry was sentenced to eight concurrent
terms of three years of imprisonment. The report applied three
points for the sentence resulting from the first count of armed rob-
bery. Id. § 4A.1.1(a). The report applied three additional points, un-
der section 4A1.1(e), to account for the sentences resulting from
the remaining three counts of armed robbery because they were
crimes of violence under section 4B1.2(a). The report stated that
the factual circumstances of the crime had been requested but not
received. Instead of objecting to the guideline calculation, Curry
asked the district court to vary below the guideline range “as if” the
dangerous sex offender enhancement, id. § 4B1.5(b)(1), and the
three additional criminal history points, id. § 4A1.1(e), did not ap-
ply.
The district court confirmed at sentencing that Curry had no
objection to the guideline calculation. Curry explained that he had
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4 Opinion of the Court 22-11209
not filed any objection because he was “trying to approach the
[c]ourt with great candor and ask [] for [its] discretion under vari-
ance” and the sentencing factors,
18 U.S.C. § 3553(a). The district
court found that Curry’s argument that six criminal history points
overstated the seriousness of the armed robbery offense was a “fa-
cially credible point” in the light of his receipt of only a three-year
sentence and the lack of information about the prior offense. The
district court continued sentencing and instructed the probation of-
ficer to locate records of the prior convictions.
According to police reports that were obtained after the
hearing, the prior convictions were based on a robbery that oc-
curred at a fast-food restaurant in 2006. After midnight, four men
armed with knives and a pipe approached an employee who was
working outside. The men announced, “This is a robbery,” and
took the employee’s cell phone and wallet. The men entered the
restaurant with the employee and took money from the office and
cash register. The men also demanded the other employees’ cell
phones and made them enter the freezer, which they blocked with
baskets of produce. An employee recognized one of the men as a
former employee. Later, two employees identified both Curry and
the former employee in separate lineups. One employee stated that
she could not remember what Curry was armed with or what his
role was, and the other employee stated that Curry was armed with
a knife.
At the final sentencing, Curry stated again that he had “no
legal objection to the guideline range” and relied on his arguments
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22-11209 Opinion of the Court 5
for a downward variance based on the sentencing factors. But
Curry stated that his “position [was] still the same about . . . the
three additional points being added for the additional acts of vio-
lence” because he served only as the lookout during the robbery.
The district court sentenced Curry to 324 months of impris-
onment. The district court stated that it considered Curry’s argu-
ment about the additional criminal history points, but it could not
say that the six points overstated the “extremely serious” nature of
the crime and the eight serious felony counts. The district court
stated that it had considered “whether [the offense] ought to be
treated as only a three-point offense and to essentially ignore the
other three [points],” but it could not do so. The district court also
stated that it saw no reason for a downward variance. The govern-
ment sought to clarify whether the district court would have im-
posed the same sentence regardless of the contested criminal his-
tory points. The district court stated, and Curry confirmed, that no
legal objection had been raised to the guideline range and that
Curry had asked only for a variance.
Curry argues that the district court erred by adding three
criminal history points, under section 4A1.1(e), for the armed rob-
bery convictions because these crimes were committed during a
single criminal episode, which was an impermissible “double
counting” because it clearly conflicted with section 3D1.2 regard-
ing the grouping of crimes of conviction. Because this argument is
not the same argument that Curry presented to the district court,
as he expressly denied having any objection to his advisory
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6 Opinion of the Court 22-11209
guideline range, we review only for plain error. United States v.
Suarez,
893 F.3d 1330, 1335 (11th Cir. 2018). Under plain error re-
view, Curry can obtain relief only if he proves that the district court
committed an error that is plain and that affects his substantial
rights.
Id.
The district court did not plainly err. Curry identifies no
binding precedent, nor does our research reveal any, that identifies
an obvious conflict between sections 3D1.1 and 4A1.1. United
States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003). Nor
could he.
Chapter 4 of the Guidelines governs the calculation of crim-
inal history. Under section 4A1.1(a), a defendant receives three
criminal history points for each prior sentence of imprisonment
that exceeds one year and one month. U.S.S.G. § 4A1.1(a) (Nov.
2018). And, under section 4A1.1(e), one point is added for “each
prior sentence resulting from a conviction of a crime of violence
that did not receive any points . . . because such sentence was
treated as a single sentence, up to a total of 3 points for this subsec-
tion.” Id. § 4A1.1(e).
Part D of Chapter 3 provides rules “for determining a single
offense level that encompasses all the counts of which the defend-
ant is convicted.” Id. ch. 3, pt. D, intro. cmt. The resulting com-
bined offense level is used to determine the defendant’s advisory
sentence. Id. Specifically, section 3D1.2 provides that “[a]ll counts
involving substantially the same harm shall be grouped together
into a single Group.” Id. § 3D1.2.
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22-11209 Opinion of the Court 7
These provisions govern different guideline determinations.
Part D of Chapter 3 instructs when and how multiple counts of
federal convictions in the instant proceeding should be grouped to
determine the defendant’s offense level. Indeed, the application
notes provide a number of examples of how counts may be
grouped, all of which concern federal crimes. See generally
U.S.S.G. ch. 3, pt. D (providing, as examples, convictions for em-
bezzling money, racketeering, drug trafficking, firearms dealing,
and environmental offenses). But Part A of Chapter 4 governs a de-
fendant’s record of past criminal conduct, which “may represent
convictions in the federal system, fifty state systems, the District of
Columbia, territories, and foreign, tribal, and military courts.” See
id. ch. 4, pt. A. No conflict exists between these sections.
Curry erroneously argues that, because a defendant’s “crim-
inal history” is essentially a “catalogue of a defendant’s crimes of
convictions,” the terms “criminal history” and “crimes of convic-
tion” must mean the same thing under the Guidelines and that sec-
tions 3D1.2 and 4A1.1 are “plainly interrelated.” As we have ex-
plained, the former section addresses the defendant’s instant fed-
eral crimes of conviction, and the latter addresses his past convic-
tions and criminal conduct. And even if the rule of lenity applies to
advisory sentencing guidelines, the rule of lenity is inapposite be-
cause these guidelines are not ambiguous. See United States v. Cin-
gari,
952 F.3d 1301, 1310–11 (11th Cir. 2020); United States v.
Wright,
607 F.3d 708, 716–20 (11th Cir. 2010) (W. Pryor, J., concur-
ring). And Curry fails to establish the relevance of Wooden v.
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8 Opinion of the Court 22-11209
United States,
142 S. Ct. 1063, 1067 (2022) (interpreting the “differ-
ent occasions” requirement of the Armed Career Criminal Act).
We AFFIRM Curry’s sentence.
