United States v. Demonte Easley ( 2023 )


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  • USCA11 Case: 21-12695    Document: 47-1     Date Filed: 02/09/2023   Page: 1 of 3
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-12695
    Non-Argument Calendar
    ____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    DEMONTE EASLEY,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court
    for the Northern District of Florida
    D.C. Docket No. 3:20-cr-00040-TKW-5
    ____________________
    USCA11 Case: 21-12695      Document: 47-1      Date Filed: 02/09/2023     Page: 2 of 3
    2                       Opinion of the Court                 21-12695
    Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
    PER CURIAM:
    Sheryl Lowenthal, appointed counsel for Demonte Easley
    on direct criminal appeal, has moved to withdraw from further rep-
    resentation of the appellant and filed a brief pursuant to Anders v.
    California, 
    386 U.S. 738
     (1967). Our independent review of the en-
    tire record reveals that counsel’s assessment of the relative merit of
    the appeal is correct. Because independent examination of the en-
    tire record reveals no arguable issues of merit, we grant counsel’s
    motion to withdraw and affirm Easley’s convictions and sentences.
    In coming to this conclusion, we have considered Mr. Ea-
    sley’s response to his counsel’s motion to withdraw. The problem
    for Mr. Easley is that we have held that possession of a controlled
    substance with intent to distribute in violation of 
    Fla. Stat. § 893.13
    constitutes a “serious drug offense” under 
    18 U.S.C. § 924
    (e)(2)(A)
    (defining a “serious drug offense” in part as an offense under state
    law “involving manufacturing, distributing, or possession with in-
    tent to manufacture or distribute a controlled substance”). See
    United States v. Smith, 
    775 F.3d 1262
    , 1267-68 (11th Cir. 2014);
    United States v. Jackson, 
    55 F.4th 846
    , 861-62 (11th Cir. 2022). And,
    as we noted in Jackson, the Supreme Court has affirmed one of our
    decisions holding that a conviction under § 893.13 is a “serious drug
    offense.” See Shular v. United States, 
    140 S.Ct. 779
    , 784, 787 (2020).
    Mr. Easley’s prior convictions under § 893.13 for distribution of
    crack cocaine within 1,000 feet of a place of worship and for
    USCA11 Case: 21-12695       Document: 47-1       Date Filed: 02/09/2023      Page: 3 of 3
    21-12695                 Opinion of the Court                           3
    possession of crack cocaine with intent to distribute therefore con-
    stituted ACCA predicate offenses.
    Although we grant the motion to withdraw and affirm Ea-
    sley’s convictions and sentences, there is a clerical error in his final
    judgment of conviction. We may sua sponte raise the issue of a
    clerical error in a judgment and remand with instructions to correct
    the error. See United States v. Massey, 
    443 F.3d 814
    , 822 (11th Cir.
    2006). The superseding indictment and Easley’s plea agreement
    state in Count 1 that Easley violated 
    21 U.S.C. § 846
     by conspiring
    to possess with intent to distribute controlled substances. How-
    ever, the district court lists 
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(A)(viii),
    and 841(b)(1)(B)(i), as the statutes of conviction on Count 1. Sec-
    tion 846 punishes conspiracy to possess with intent to distribute
    controlled substances, and the district court’s omission of a citation
    to it appears to be a clerical error. Thus, we remand to the district
    court with instructions to amend the judgment of conviction to
    correct the clerical error.
    Motion to withdraw GRANTED, convictions and sentences
    AFFIRMED, and REMANDED for the limited purpose of correct-
    ing the judgment.