United States v. Bacari McCarthren
707 F. App'x 951
| 11th Cir. | 2017Background
- McCarthren pled guilty in 2013 to possession with intent to distribute cocaine and was sentenced to the statutory maximum of 20 years after receiving a career‑offender enhancement under the Sentencing Guidelines (U.S.S.G. § 4B1.1).
- On direct appeal counsel filed an Anders brief; this court affirmed the conviction and sentence.
- McCarthren petitioned the Supreme Court; while that petition was pending the Supreme Court decided Johnson and the Solicitor General recommended a GVR (grant, vacate, remand); the Supreme Court granted, vacated, and remanded.
- On remand the government moved to dismiss based on a sentence‑appeal waiver in McCarthren’s plea agreement, but the government’s prior GVR recommendation forfeited its right to assert the waiver.
- The central dispute is whether McCarthren’s prior Florida aggravated‑assault conviction qualifies as a “crime of violence” for the career‑offender guideline; McCarthren argued Mathis undermines this court’s precedent in Turner.
- The panel concluded it remained bound by this court’s decision in Turner, so the career‑offender enhancement was properly applied and the sentence was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Florida aggravated assault is a "crime of violence" for career‑offender purposes | Mathis undermines Turner; aggravated assault does not categorically qualify | Turner controls: Florida aggravated assault qualifies under the elements clause | Court bound by Turner; enhancement stands |
| Whether the government can invoke the sentence‑appeal waiver after recommending GVR to the Supreme Court | Waiver of Turner via Mathis may render sentence challenge valid | Government argued plea waiver bars the appeal | Government forfeited the waiver by recommending GVR; court reached merits |
| Whether prior appellate affirmance and Anders brief preclude relief post‑GVR | McCarthren contended remand permits reconsideration under Johnson/Mathis | Government relied on procedural bars and waiver | Court considered merits due to government forfeiture and affirmed on precedent grounds |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedures for counsel filing no‑merit briefs on appeal)
- Johnson v. United States, 576 U.S. 591 (2015) (holding the residual clause of ACCA void for vagueness)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (holding categorical approach limits when modified elements create mismatches)
- Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013) (Florida aggravated assault qualifies as a crime of violence under the elements clause)
- United States v. Golden, 854 F.3d 1256 (11th Cir. 2017) (discussing continued binding effect of Turner despite tensions)
- United States v. Story, 439 F.3d 226 (5th Cir. 2006) (appeal waivers are governed by contract principles and can be waived)
- Burgess v. United States, 874 F.3d 1292 (11th Cir. 2017) (characterizing collateral‑attack waivers as affirmative defenses)