United States v. Edwin M. Mack , 198 F. App'x 799 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 3, 2006
No. 05-16270 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00049-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN M. MACK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 3, 2006)
Before CARNES, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Edwin Mack appeals his convictions and sentences for multiple drug and
firearms offenses in violation of 21 U.S.C. §§ 841 and 846, 18 U.S.C. § 922(g),
and 26 U.S.C. § 5861. After a thorough review of the record, we affirm.
I. Background
Mack was indicted for conspiracy to possess with intent to distribute crack
cocaine, in violation of 21 U.S.C. § 846 (Count 1); distribution of crack cocaine, in
violation of 21 U.S.C. § 841 (Counts 2 and 3);1 possession with intent to distribute
50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841 (Count 4);
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)
(Count 5); and possession of an unregistered firearm, in violation of 26 U.S.C.
§ 5861 (Count 6). The government indicated that it intended to seek enhanced
penalties, including mandatory life imprisonment on Count 4, under 21 U.S.C.
§ 851.
Mack originally pleaded guilty to all counts without a written plea
agreement, but when he realized he faced a mandatory term of life imprisonment,
he moved to withdraw his plea. Although the court had questioned Mack
extensively during the plea colloquy and had explained the possible penalties, after
a hearing on the motion, the court granted Mack’s motion to withdraw the plea.
Prior to trial, the court determined that it would conduct a bifurcated trial,
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Counts 1 and 2 also named Mack’s co-conspirator, John Howard.
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separating Count 5 because it required proof that Mack had prior felony
convictions.
The evidence at trial established the following facts: Fort Myers Police
Officer Richard Davis, acting as a drug buyer, approached Mack at Mack’s home
to purchase crack cocaine. Mack was hesitant to make a deal, but agreed after co-
conspirator John Howard arrived and confirmed that he did not think Davis was
police. Mack gave two pieces of crack to Howard, who then gave the drugs to
Davis in exchange for $40. Davis later engaged in another, similar sale with Mack.
Field tests confirmed that the pieces were crack. Following the buys, police
obtained and executed a search warrant, at which time they found a shotgun in
Mack’s house, the money Davis used in the undercover buys, and drugs in a jacket
in the trunk of Mack’s car. DEA forensic chemists confirmed that the amount of
crack found exceeded 81 grams. An ATF Agent confirmed that the firearm was
manufactured in Massachusetts. In a subsequent interview, Mack admitted that he
kept a shotgun in the house for protection and that he had crack cocaine for
personal use, but he denied selling drugs.
During its case-in-chief, the government notified the court that it wished to
call Vincent Doyle, a witness for the defense, to testify about a traffic stop
involving Howard and Mack that resulted in Howard’s arrest on drug charges
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unrelated to the instant charges. Mack did not object. The court indicated that it
normally would not allow such testimony because it did not relate to the instant
charges, but after defense counsel stated that he wanted the testimony to come in,
the court allowed the testimony. Doyle then testified that he had arrested Howard
on drug charges during a routine traffic stop. Mack was a passenger in the car, but
police did not find any drugs on him. The court instructed the jury that the crack
found on Howard was not part of the conspiracy.
After the government rested its case-in-chief, Mack moved for judgment of
acquittal, challenging the chain of evidence and whether the government had
established that Mack knew the shotgun had to be registered. The court denied the
motion. Defense counsel called one witness, and Mack did not testify. The
government had no rebuttal witnesses, and Mack renewed his motion for judgment
of acquittal, which the court again denied. The jury convicted Mack on Counts 1-4
and 6, specifically concluding that the amount of drugs exceeded 50 grams.
The court then proceeded on Count 5. The government proffered evidence
that Mack had been convicted of sale of cocaine and that his rights had been
restored, except for the right to possess a firearm. The government also re-
submitted Mack’s statement, in which Mack admitted that he was a convicted
felon. Although defense counsel objected to the tape, the court permitted it into
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evidence. The jury convicted Mack on Count 5.
The probation officer prepared a presentence investigation report (“PSI”),
grouping the offenses together under U.S.S.G. § 3D1.2(c) and (d) and assigning a
base offense level of 32 based on the amount of drugs. This level was increased by
2 for possession of a firearm, § 2D1.1(b)(1), and by 2 for role in the offense,
§ 3B1.1(c), resulting in a total offense level of 36. Mack, however, qualified as a
career offender under § 4B1.1; therefore, his offense level was raised to 37. The
probation officer then listed the prior convictions, including several prior drug
convictions, resulting in a criminal history category IV. Because Mack was a
career offender, the criminal history category was raised to VI.
The probation officer noted that the government had filed for an
enhancement under 21 U.S.C. § 851. As a result, Mack faced a statutory
mandatory term of life imprisonment on Count 4. Under the sentencing guidelines,
Mack faced a range of 360 months to life imprisonment, but that range became life
under U.S.S.G. § 5G1.1(c)(2) due to the statutory life term on Count 4. Mack
made no objections to the PSI.
At sentencing, Mack made no objections to the PSI, but moved for a
downward departure based on his age and health. Mack refused to admit or deny
his prior convictions. The court denied the downward departure, finding no basis
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for it under the facts, and noting that it had no discretion because Count 4 carried a
mandatory life sentence. The court adopted the PSI and, after considering the
sentencing factors of 18 U.S.C. § 3553(a), sentenced Mack to 360 months on
Counts 1 through 3, 120 months on Counts 5 and 6, and a mandatory life
imprisonment on Count 4, all to run concurrently. Mack made no objections to the
sentence. He now appeals.
II. The Appeal
On Appeal, Mack challenges: (1) whether the court had jurisdiction over the
offenses; (2) whether the court properly admitted Doyle’s testimony; and
(3) whether his sentence was improper because (a) it was based on crack cocaine
rather than powder cocaine, and (b) it amounted to cruel and unusual punishment.
1. Jurisdiction
Mack first argues that the federal court lacked jurisdiction over his offenses
because the federal authorities were never involved in his case, and his offenses
should have been prosecuted in state court. He notes that the amount of drugs was
small and the firearm had no nexus to interstate commerce. He further challenges
jurisdiction over the firearm offense as an invalid exercise of Congress’s
Commerce Clause power.
Mack did not move to dismiss the indictment, and his motions for judgment
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of acquittal did not challenge the court’s jurisdiction. Nevertheless, because
subject-matter jurisdiction cannot be waived, we review the issue de novo. United
States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998).
In this case, there was no error, as the court retained jurisdiction over the
offenses. First, the district court’s jurisdiction is controlled by 18 U.S.C. § 3231,
conferring jurisdiction over “offenses against the laws of the United States.” 18
U.S.C. § 3231. As the offenses for which Mack was charged are offenses against
the United States, see 18 U.S.C. § 922(g), 21 U.S.C. §§ 841 and 846, and 26
U.S.C. § 5681, the court had jurisdiction over the case.
Moreover, this court repeatedly has upheld the constitutionality of both
§ 841 and § 922(g). See United States v. Wright, 392 F.3d 1269, 1280 (11th Cir.
2004), cert. denied, 125 S.Ct. 1751 (2005) (upholding § 922(g)); United States v.
Osburn, 955 F.2d 1500, 1502 (11th Cir. 1992) (§ 841); United States v. Collier,
478 F.2d 268, 272-73 (5th Cir. 1973) 2 (same). We are bound by the decision of
prior panels, and “only the Supreme Court or this Court sitting en banc can
judicially overrule a prior panel decision.” Wright, 392 F.3d at 1280 (quoting
United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004)).
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In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the old Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
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Finally, there is no merit to Mack’s claim that § 922(g) is unconstitutional as
applied. All the statute requires is that the government prove some “minimal
nexus” to interstate commerce. United States v. Scott, 263 F.3d 1270, 1274 (11th
Cir. 2001); United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir. 2001). Here,
the testimony at trial established that the firearm was manufactured in
Massachusetts and found in Florida. This testimony was sufficient to establish the
nexus.
2. Doyle’s Testimony
Mack next argues that the court erred by admitting Doyle’s testimony
because it was highly prejudicial.
“The doctrine of invited error is implicated when a party induces or invites
the district court into making an error.” United States v. Harris, 443 F.3d 822, 823
(11th Cir. 2006) (quoting United States v. Stone, 139 F.3d 822, 838 (11th Cir.
1998)). Under such circumstances, this court is “precluded from reviewing that
error on appeal.” Harris, 443 F.3d at 823-24.
Here, Mack does not dispute that counsel invited the error when he informed
the court that he wanted Doyle’s testimony admitted. Thus, there was no error, and
we do not review the issue. See also United States v. Jernigan, 341 F.3d 1273,
1289-90 (11th Cir. 2003) (finding that defendant whose counsel had affirmatively
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stipulated to the playing of a tape-recorded statement had invited any error
resulting from the jury’s hearing the tape, and thus that any potential error was not
reversible).
3. Sentence
A. Crack Cocaine
In this third argument, Mack asserts that his sentence should have been
calculated based on powder cocaine rather than crack because the government
failed to establish that the drugs involved were crack.
Because Mack did not object to the sentencing calculations, we review for
plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert.
denied, 125 S.Ct. 2935 (2005).
Under the guidelines, cocaine base refers to crack, which is “the street name
for a form of cocaine base, usually prepared by processing cocaine hydrochloride
and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.” United
States v. Munoz-Realpe, 21 F.3d 375, 377-78 (11th Cir. 1994). The evidence at
trial established that the drugs found involved crack cocaine.
Moreover, as the government notes, Mack did not object to the PSI’s factual
findings that the offense involved crack. Therefore, the facts are deemed admitted.
United States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005). Accordingly, there
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was no error, plain or otherwise, in the court’s sentencing calculations.
B. Cruel and Unusual Punishment
Because Mack failed to raise any objections to his sentences, review is for
plain error. Rodriguez, 398 F.3d at 1298.
“The Eighth Amendment, which forbids cruel and unusual punishments,
contains a narrow proportionality principle that applies to noncapital sentences.”
United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005) (quoting Ewing v.
California, 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108 (2003)
(internal quotes omitted)). “The Supreme Court has made it clear that ‘[o]utside the
context of capital punishment, successful challenges to the proportionality of
sentences [are] exceedingly rare.’” United States v. Raad, 406 F.3d 1322, 1323
(11th Cir.) (quoting Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009,
77 L.Ed.2d 637 (1983)) (emphasis and alterations in original), cert. denied, 126
S.Ct. 196 (2005).
On Eighth Amendment challenges,
a reviewing court must make a threshold determination that the
sentence imposed is grossly disproportionate to the offense committed
and, if it is grossly disproportionate, the court must then consider the
sentences imposed on others convicted in the same jurisdiction and
the sentences imposed for commission of the same crime in other
jurisdictions.
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Id. (quoting United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000)). “In
general, a sentence within the limits imposed by statute is neither excessive nor
cruel and unusual under the Eighth Amendment.” Moriarty, 429 F.3d at 1024
(quoting United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005)).
Here, the sentence was dictated by the statutory mandatory sentencing
provision. Mack has offered nothing to show that his sentence constitutes cruel
and unusual punishment. See United States v. Dowd, 2006 WL 1594190, at *11-12
(11th Cir. June 13, 2006) (concluding that 305-month sentence was reasonable
even in light of defendant’s age (65) because defendant had nine prior convictions
and had committed a violent felony at his age); see also United States v. Hanna,
153 F.3d 1286, 1288 (11th Cir. 1998) (upholding harsher sentence for crack
cocaine because “imposing longer sentences on crack cocaine offenders is
rationally related to the legitimate purpose of distinguishing between
distinguishable drugs. . . Congress distinguished between the kinds of cocaine, not
to discriminate against people, but because crack cocaine is more dangerous, more
highly addictive, more easily available, and less expensive than powder cocaine.”);
United States v. Vasquez, 121 F.3d 622, 623 (11th Cir. 1997) (upholding harsher
sentence for crack because crack was more dangerous than other forms of cocaine
and warranted a higher penalty).
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Additionally, this court has rejected challenges to the disparity between
sentences for crack and powder cocaine, concluding that “there are numerous
legitimate and non race-related reasons why Congress may have included the
distinction between cocaine base and cocaine powder, and it is not for the courts to
interfere in that determination.” United States v. Matthews, 126 F.3d 1234, 1251
(11th Cir. 1999). Therefore, Mack cannot show that his sentence amounts to cruel
and unusual punishment.
III. Conclusion
For the foregoing reasons, we AFFIRM Mack’s convictions and sentences.
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