United States v. Flores

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEREMIAH FLORES, Defendant-Appellant.

No. 13-13304

D.C. Docket No. 1:12-cr-20874-RSR-1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

April 2, 2014

[DO NOT PUBLISH]

Non-Argument Calendar

Appeal from the United States District Court

for the Southern District of Florida

Before WILSON, JORDAN and FAY, Circuit Judges.

PER CURIAM:

Jeremiah Flores pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and being an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). He was sentenced to 180 months in prison, the statutory minimum under § 924(e)(1), and he now appeals. He argues that the district court procedurally erred at sentencing by failing to elicit fully articulated objections from him after his sentence was imposed. He also argues that 18 U.S.C. § 922(g)(1) violates the Tenth Amendment of the U.S. Constitution, and that the district court plainly erred by sentencing him under an unconstitutional statute. After careful review of the parties' briefs, we affirm.

I. Flores's Objections to his Classification under the ACCA

A. The Alleged Jones Violation

After the district court "states its factual findings, applies the guidelines, and imposes sentence," it must provide the parties the opportunity "to object to the district court's ultimate findings of fact and conclusions of law and to the manner in which the sentence is pronounced." United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990) (emphasis added), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc) (per curiam). Flores claims that the district court violated Jones in two ways by asking the following question after imposing Flores's sentence: "Now that [the] sentence has been imposed, does thedefendant or his counsel object to the Court's findings of fact or the manner in which the sentence was pronounced?"

First, Flores appears to suggest that the court erred by failing to directly elicit objections from the defendant, even where, as here, the defendant was represented. Without suggesting that we would ever adopt such a rule, we reject Flores's claim because even if we were to adopt the proposed rule, it was satisfied. The court specifically asked if "the defendant or his counsel object."

Second, Flores claims that the court erred in eliciting objections only as to "the Court's findings of fact or the manner in which the sentence was pronounced," without mentioning, as required by Jones, the court's conclusions of law. In United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007) (per curiam), we held that the district court violated Jones when the court asked only, "Is there anything further?," and the defendant raised no objections in response. We noted in Campbell that "there [was] no indication that defense counsel understood the court to be eliciting objections." Id. Flores's contention is therefore premised on the notion that a party hearing an invitation to raise objections to findings of fact or the manner of pronouncement of a sentence would somehow not understand that the court was also eliciting objections generally, including objections to conclusions of law.

We reject this contention. The post-imposition question here signaled clearly and obviously that the parties were invited to object. The question in Campbell—"Is there anything further?"—could easily have been taken as an inquiry wholly unrelated to objections, and indeed, defense responded by requesting drug treatment for the defendant rather than by offering objections. Id. Here, no such confusion was possible, and no one could seriously conclude that objections to conclusions of law were not also invited. Defense counsel concedes that she had no legal objections, so the plausibility of Flores's contention is weakened even further. A defendant would not parse the district court's elicitation and decline to raise objections to conclusions of law because the court only invited objections to conclusions of fact and the manner in which the sentence was imposed. The defendant's failure to offer objections signaled only that he had none—a conclusion confirmed by his failure to discuss any specific objections he would have made at the time had the court given a perfect Jones elicitation.

B. Standard of Review

Regardless of whether a Jones violation occurred, it is appropriate to consider the merits of Flores's objections in this appeal. Flores's brief states that, as a result of the Jones violation, we should remand "to the district court for resentencing so that Mr. Flores can articulate his specific objections to the district court's legal conclusions on his objections." The objections on which the courtrendered legal conclusions were found in a pro se brief filed by Flores. In that filing, he objected to his classification as an armed career criminal in the Presentence Investigation Report (PSI). The district court, after noting that it would normally strike such pro se objections filed by represented defendants, nevertheless overruled Flores's objections on the merits, stating:

[I]t has been noted in the PS[I] addendum that that [Flores's objection] has been rejected by the Eleventh Circuit Court of Appeals. But even if it had not, there are enough independent criminal history points that the criminal history would come out to a level six whether you were a career offender or not, I believe. If anybody thinks I'm mistaken, I'll hear that now.¹

In stating that he has "objections" to these legal conclusions, Flores is more or less stating that he wants to appeal the district court's decision. The court's alleged Jones violation did not deprive him of this opportunity. In United States v. Weir, we held that when the "district court clearly underst[ands] the [party's] position and specifically reject[s] it[,] [t]his satisfie[s] the purpose of Jones to allow the district court to make a studied decision on the objection." 51 F.3d 1031, 1033 (11th Cir. 1995). Weir further held that objections which are raised and addressed before the sentence is imposed need not be re-raised after the Joneselicitation in order to be preserved for appeal, id., so Flores's pro se objections are preserved. Rather than grant Flores remand, which is not warranted because it does not appear a Jones violation occurred and which seems pointless given that the objections Flores seeks to make were already considered and rejected by the court to which we would remand, we will simply construe his "objections" to the court's legal conclusions as an appeal from the court's decision to sentence him in accord with the PSI.

We review sentences for reasonableness. United States v. Martin, 455 F.3d 1227, 1235 (11th Cir. 2006). We review the district court's legal interpretations de novo and its factual findings for clear error. Id.²

C. The Merits of Flores's ACCA Objections

Flores objected to his classification under the ACCA, claiming that his prior convictions did not constitute "serious drug offense[s]" under § 924(e)(2)(A)(ii) because the convictions failed to specify the quantity of drugs involved. In United States v. Sanchez, we recognized that the prior drug offenses at issue there couldnot be classified as "serious" for purposes of sentencing under 18 U.S.C. § 3559(c) for this very reason. 586 F.3d 918, 929-30 (11th Cir. 2009). If such convictions do not constitute "serious drug offense[s]" under § 3559(c), they should not under § 924(e), either, Flores claims.

We agree with the PSI's conclusion, echoed by the district court, that this case is not analogous to Sanchez. To be sure, the statute at issue in Sanchez, § 3559(c), and the statute at issue here, § 924(e), use the phrase "serious drug offense," but the statutory definitions of that phrase are different. The definition in the former is defined, at 18 U.S.C. § 3559(c)(2)(H), by cross-referencing various portions of the federal Controlled Substances Act, which define offenses based in part on the amount of drugs involved. Section 924(e)(2)(A)(ii), by contrast, defines the same phrase as "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." Thus, when Sanchez held that underlying convictions required proof of the amount of drugs involved, it did so because of the statutory definition of "serious drug offense" applicable to § 3559(c). The statutory definition of that phrase in § 924(e) has no such requirement.

The offenses here are second degree felonies under Fla. Stat. § 893.13(1)(a) for sale of cocaine and possession of cocaine with intent to sell. Second degreefelony drug convictions qualify as serious drug offenses for purposes of the ACCA because they carry maximum penalties of more than ten years, regardless of the quantities involved. Fla. Stat. § 775.082(3)(c). Thus, the district court properly overruled Flores's objection to the PSI on this basis.³

Flores also contended that two of the three underlying convictions used to classify him as an armed career criminal were handed down on the same day, so they were not "committed on different occasions" as required under 18 U.S.C. § 924(e)(1). PSI Addendum, upon which the district court relied, noted that there were actually four separate offenses. This implies that even if the two convictions from the same day only constituted a single occasion, there were still a total of three, sufficient for classification as an armed career criminal under § 924(e).

Neither the PSI Addendum nor the district court addressed Flores's argument that United States v. Sneed precluded the use of police reports and other sources that were not approved in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), in determining whether offenses were committed on different...