631 F. App'x 711
11th Cir.2015Background
- Defendant Duwane Gilmore pled guilty to two counts of bank robbery by force or violence (18 U.S.C. § 2113(a)).
- The PSR designated Gilmore a career offender under U.S.S.G. § 4B1.1 based on his robbery convictions (violent felonies) and at least two prior felony convictions for controlled substance offenses.
- Prior Florida convictions listed: 2005 possession with intent to sell (near a place of worship), 2009 possession with intent to sell (near a school), 2010 sale (near a place of worship), and a 2012 recidivist battery.
- After a three-level reduction for acceptance, offense level 29 and criminal-history category VI yielded a guideline range of 151–188 months; district court varied downward and sentenced Gilmore to 120 months.
- Gilmore objected to using the battery and drug convictions as career-offender predicates; district court overruled objections. Gilmore appealed the career-offender designation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gilmore's Florida drug convictions qualify as "controlled substance offenses" under U.S.S.G. § 4B1.2(b) | Gilmore: Fla. Stat. § 893.13(1)(a) does not require remuneration/exchange so it is not comparable to federal drug trafficking and thus not a predicate (relies on Young/Moncrieffe analogy) | Government/District Ct.: The guidelines definition includes possession with intent to distribute/dispense and does not require remuneration; Fla. statute matches that definition | Held: Qualifies. Remuneration not required under the amended guidelines; district court did not err. |
| Whether lack of a mens rea element in Fla. Stat. § 893.13(1)(a) prevents classification as a predicate controlled-substance offense | Gilmore (raised for first time on appeal): Florida statute lacks mens rea re: illicit nature, so it cannot serve as a predicate | Government: Precedent (Smith) holds the guidelines do not require a state predicate to contain such a mens rea element; binding on this panel | Held: Rejected. Smith controls; no mens rea requirement required for predicate status. |
| Whether career-offender enhancement applied given multiple predicates (including battery) and any impact of Johnson v. United States | Gilmore: preserved objections to battery as a violent felony but invoked Johnson regarding residual clause issues | Government/District Ct.: Multiple drug predicates alone satisfy §4B1.1(a)(3); battery need not be resolved | Held: Not reached on Johnson because at least two drug convictions suffice to support the career-offender enhancement; enhancement stands. |
Key Cases Cited
- United States v. Smith, 775 F.3d 1262 (11th Cir. 2014) (interpreting amended "controlled substance offense" definition and holding no mens rea or remuneration requirement for predicate state drug offenses under §4B1.2(b))
- Young v. United States, 936 F.2d 533 (11th Cir. 1991) (prior interpretation treating controlled-substance definition as tied to federal drug-trafficking offenses; distinguished by Smith)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (Supreme Court holding that possession with intent to distribute that does not require remuneration may not qualify as "illicit trafficking" under immigration law)
- United States v. Gibson, 434 F.3d 1234 (11th Cir. 2006) (standard: de novo review of career-offender classification)