United States v. Michael Bernard Lawson

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14776

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL BERNARD LAWSON,

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:19-cr-00375-JA-CPT-1

____________________

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2 Opinion of the Court 20-14776

Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

Michael Lawson appeals his total sentence of 120 months’

imprisonment for possessing firearms as a felon and distributing

cocaine base. Lawson argues first that the district court erred by

categorizing him as a career offender because the

Shepard1documents for one of his prior offenses were inconsistent

and did not plainly speak to his prior conviction. Second, Lawson

argues that the court improperly imposed a firearm enhancement

pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because the firearms he

possessed and sold were not connected to his drug offenses. Third,

Lawson argues that the district court should have found sentencing

factor manipulation because law enforcement officers did not

arrest him after his first offense and continued to transact with him

even though he was on community control. Fourth, Lawson

argues that his sentence is grossly disproportionate in violation of

the Eighth Amendment and his Fifth Amendment substantive due

process rights. After review, we affirm and remand for the limited

purpose of correcting the judgment to reflect that Count 4 of

Lawson’s indictment did not charge him with possession of

ammunition.

1 Shepard v. United States, 544 U.S. 13 (2005).

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I. Background

In April 2019, Lawson sold crack cocaine to an undercover

officer and confidential informant four times. After the second

sale, the undercover officer and confidential informant asked

Lawson if he would sell them guns, which he agreed to do. The

third sale took place in a motel, where Lawson sold them crack

cocaine and a pistol; and the fourth sale took place in the officer’s

car, where Lawson sold the officer and confidential informant

crack cocaine, a short-barreled shotgun, and ammunition.

Lawson pleaded guilty to four counts of distributing cocaine

base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C), and two counts of possessing a firearm as a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The

United States sought a sentence enhancement based on Lawson’s

prior drug convictions. So, Lawson faced an enhanced statutory-

maximum term of 30 years’ imprisonment for his crack-cocaine

offenses.

The United States Probation Office recommended

classifying Lawson as a career offender because he had two prior

state court convictions—one for a crime of violence (a 2011 Florida

conviction for aggravated assault of a law enforcement officer with

a firearm) and another for a controlled substance offense (a 2004

Florida conviction for possession, sale, or delivery of cocaine

within 1000 feet of a place of worship). See U.S.S.G. § 4B1.1(a). As

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4 Opinion of the Court 20-14776

relevant here, the state court judgment underlying the 2004

conviction identified the statute of conviction as Fla. Stat.

§ 893.13(1)(e)(1), and the crime of conviction as “possession sale or

delivery of cocaine within 1000 feet of a place of worship.”2

Similarly, the waiver-of-rights form for Lawson’s state court guilty

plea described the crime as “cocaine sale w[ithin] 1000 feet of

church.” However, the state court charging document cited the

incorrect statute in the description of the offense, correctly listing

the alleged crime as “POSSESSION, SALE OR DELIVERY OF

COCAINE WITHIN 1000’ OF A PLACE OF WORSHIP

893.13(1)(e)1,” but also stating incorrectly that Lawson did

“feloniously possess, sell or deliver a controlled substance . . .

Cocaine … within 1000 feet of a physical place for worship at which

a church or religious organization regularly conducts religious

services, contrary to Sections 893.135(1)(e)1,” adding a “5” to the

statute number. 3

The probation office recommended a base offense level of

26 for Lawson’s federal offenses, because his sale of guns and drugs

to undercover officers included selling a short-barreled shotgun

and Lawson had two prior felony convictions for a crime of

2 See Fla. Stat. § 893.13(1)(e)(1) (“a person may not sell, manufacture, or

deliver, or possess with intent to sell, manufacture, or deliver, a controlled

substance . . . within 1,000 feet of a physical place for worship at which a

church . . . regularly conducts religious services”).

3 Fla. Stat. § 893.135(1)(e)(1) prohibits trafficking methaqualone.

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20-14776 Opinion of the Court 5

violence and a controlled substance offense. See U.S.S.G.

§ 2K2.1(a)(1)(B). The office recommended an additional four levels

under U.S.S.G. § 2K2.1(b)(6)(B) because these offenses had

involved Lawson’s possession of a firearm in connection with his

distribution of crack cocaine. Thus the total adjusted offense level

was 30, which was less than his offense level under the career-

offender guidelines—31—and therefore did not apply. See

U.S.S.G. § 4B1.1(b)(2).

Based on a total offense level of 31, and a criminal-history

category of VI, Lawson had an advisory guideline range of 188 to

235 months imprisonment.

At his first sentencing hearing, Lawson objected to the PSI’s

application of the sentencing guidelines’ career offender and

firearm enhancements. The district court heard argument on

Lawson’s objections but continued the sentencing hearing to allow

the parties to discuss and brief the issues further. Both parties then

filed additional sentencing memoranda. And upon reconvening

two months later, the court overruled Lawson’s objections,

including a new factor manipulation objection, and sentenced

Lawson to serve a total of 120 months in prison, 68 months below

the low end of the guideline range. This appeal followed.

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II. Discussion

Lawson argues that the district court erred by classifying

him as a career offender, applying a four-level enhancement to his

offense level for possession of a firearm in connection with another

felony, denying his claim of sentence factor manipulation by

government agents, and sentencing him to a term that violates his

Fifth and Eighth Amendment rights.

A. Career Offender Categorization

Lawson argues that he is not a career offender because the

Shephard documents do not clearly explain the elements of his

previous conviction for the possession, sale, or delivery of cocaine

within 1000 feet of a place of worship.

We review a career offender classification de novo. United

States v. Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010). We review

factual findings for clear error. United States v. Wilks, 464 F.3d

1240, 1243 (11th Cir. 2006). We can affirm for any reason with

support in the record. United States v. Chitwood, 676 F.3d 971, 975

(11th Cir. 2012). When the government pursues an enhancement

and the defendant makes a factual objection, the government has

the burden of proving the contested fact by a preponderance of the

evidence. United States v. Washington, 714 F.3d 1358, 1361 (11th

Cir. 2013). An attorney’s arguments are not evidence unless the

parties agree on the attorney’s factual assertion. Id.

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20-14776 Opinion of the Court 7

A defendant is a career offender if he (1) committed his

current crimes of conviction as an adult, (2) his current convictions

are felonies that are either crimes of violence or controlled

substance offenses, and (3) he has at least two prior felony

convictions for crimes of violence or controlled substance offenses.

U.S.S.G. § 4B1.1(a). A controlled substance offense means “an

offense under federal or state law, punishable by imprisonment for

a term exceeding one year” that prohibits manufacture,

distribution, or possession of a controlled substance. U.S.S.G.

§ 4B1.2(b).

Section 893.13(1)(e)(1) of the Florida Statutes prohibits the

sale, manufacture, delivery, or possession with intent to sell,

manufacture, or deliver a controlled substance, including cocaine,

within 1,000 feet of a place of worship or a convenience business.

Fla. Stat. § 893.13(1)(e)(1); Fla. Stat. § 893.03(2)(a)(4) (listing cocaine

and its derivatives as Schedule II drugs). Violations of

§ 893.13(1)(e)(1) are felonies punishable by more than one year in

prison. Fla. Stat. § 893.13(1)(e)(1); see also Fla. Stat. § 775.082(3)

(penalties). Lawson does not argue that § 893.13(1)(e)(1) offenses

are not controlled substance offenses under the sentencing

guidelines. Instead, Lawson argues that it is not clear that he was

convicted of § 893.13(1)(e)(1) because of a typographical error in

the state’s charging document.

We look to the offense of conviction to determine whether

it qualifies as a controlled substance offense for purposes of

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8 Opinion of the Court 20-14776

U.S.S.G. § 4B1.2. If the statute in question is divisible—meaning it

“sets out one or more elements of the offense in the alternative”—

this Court uses the modified categorical approach. In Spaho v.

United States Attorney General, 837 F.3d 1172, 1177 (11th Cir.

2016), this Court held that § 893.13 is divisible such that the court

may apply a modified categorical approach by consulting a limited

class of documents to determine which alternative way of

committing the offense formed the basis of the defendant’s prior

conviction.4 The modified categorial approach “look[s] beyond the

statutory elements of the prior conviction by considering Shepard-

approved documents for the limited purpose of ascertaining which

of the alternative elements formed the basis of the defendant’s

conviction.” Id. Shepard documents include charging documents,

judgments, plea agreements, plea colloquy transcripts, or

comparable records of the defendant that adopt factual findings

upon entering a plea. See Shepard v. United States, 544 U.S. 13, 26

(2005); Dudley, 5 F.4th at 1257. The Shepard documents must

speak plainly to the elements of a defendant’s conviction so that we

can determine whether the defendant was convicted of a crime that

consists of the requisite elements to satisfy a federal offense

4To the extent Lawson argues that the district court should have applied the

categorical approach, his argument is unpersuasive in light of Spaho. Because

Fla. Stat. § 893.13 is divisible, the district court properly applied the modified

categorical approach.

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classification. United States v. Gandy, 917 F.3d 1333, 1340 (11th

Cir. 2019).

Lawson argues that the Shephard documents do not “speak

plainly” to the elements of his prior offense because the state court

charging document references Fla. Stat. § 893.135(1)(e)(1) instead

of § 893.13(1)(e)(1). The district court did not commit clear error

when it determined that this single reference to § 893.135 was a

typographical error and that the other state court documents spoke

plainly enough to determine that Lawson was convicted of

“possession, sale, or delivery of cocaine within 1000 [feet] of a place

of worship.” Wilks, 464 F.3d at 1243 (explaining that we review

factual findings for clear error). While there is one place in the

description of the charge where the information states that Lawson

is charged with a violation of § 893.135(1)(e)(1) instead of Fla. Stat.

§ 893.13(1)(e), that paragraph also specifically states that he was

pleading guilty to a count of possession of cocaine “within 1,000

feet of a physical place for worship.” Additionally, the official court

records repeatedly indicated that Lawson was pleading guilty to

“POSSESSION SALE OR DELIVERY OF COCAINE WITHIN

1000 FEET OF A PLACE OF WORSHIP” in violation of

§ 893.13(1)(e)(1). Therefore, the court record “speak[s] plainly in

establishing the elements of” Lawson’s 2004 conviction. Gandy,

917 F.3d at 1340 (quotation omitted). Because Lawson was

convicted of violating a state law prohibiting the possession, sale or

delivery of cocaine, punishable by more than a year of

imprisonment, Fla. Stat. § 775.082(3), the conviction qualified as a

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controlled substance offense under the career offender statutory

guidelines. U.S.S.G. § 4B1.2(b).

And therefore, because Lawson was (1) an adult when he

committed the current offense, (2) his current offense is a

controlled substance offense and (3) Lawson had two prior offenses

for crimes of violence or controlled substances, the district court

properly sentenced him as a career offender under U.S.S.G.

§ 4B1.2(b).

B. Possession of a Gun in Connection with Another

Felony

Lawson argues that the district court erred in applying a

four-level enhancement for possession of a firearm in connection

with another felony offense (distributing cocaine in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C)) because the firearms he sold to

undercover agents did not facilitate the drug transaction.

A court’s determination that a defendant possessed a gun in

connection with another felony is a finding of fact that we review

for clear error. United States v. Bishop, 940 F.3d 1242, 1250 (11th

Cir. 2019). At sentencing, district courts may base factual findings

on undisputed statements in the presentence investigation report.

United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009).

Pursuant to U.S.S.G. § 2K2.1(b)(6)(B), “[i]f the

defendant . . . used or possessed any firearm or ammunition in

connection with another felony offense; or possessed or transferred

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any firearm or ammunition with knowledge, intent, or reason to

believe that it would be used or possessed in connection with

another felony offense” the resulting offense level “increase[s] by 4

levels.” Generally, this enhancement applies when the gun

facilitated or had the potential to facilitate another felony offense

and applies automatically “in the case of a drug trafficking offense

in which a firearm is found in close proximity to drugs.” Id. cmt.

(n.14(A–B)); Bishop, 940 F.3d at 1250.

The Guidelines define a drug trafficking offense, in part, as

“any offense under federal, state, or local law that prohibits the

manufacture, import, export, distribution, or dispensing of, or offer

to sell a controlled substance (or a counterfeit substance) or the

possession of a controlled substance (or a counterfeit substance)

with intent to manufacture, import, export, distribute, or

dispense.” U.S.S.G. § 2L1.2 cmt. (n.2); United States v. Martinez,

964 F.3d 1329, 1334 n.2 (11th Cir. 2020) (quoting United States v.

Perez, 366 F.3d 1178, 1182 (11th Cir. 2004)) (“Although section

2K2.1 does not define ‘drug trafficking offense,’ we’ve said that

‘[w]here the same language appears in two guidelines, it is

generally presumed that the language bears the same meaning in

both . . . [W]here two sentencing guidelines are worded identically,

absent any distinctions or clarifying words noted in the

Commentary, they should be interpreted and applied in the same

manner.’”).

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Lawson sold cocaine base to the officers. Coca leaves and

its salts, compounds, derivatives, and preparations are controlled

substances under federal law. 21 C.F.R. § 1308.12(b)(4).

Here, the court did not clearly err by finding that the

firearms were in close proximity to Lawson’s drugs and applying

the enhancement on that basis. The presentence investigation

report indicated that Lawson sold drugs and a gun on two

occasions. Thus, his firearms were in close proximity to the drugs

and were therefore connected to his drug offenses. Accordingly,

the § 2K2.1(b)(6)(B) enhancement automatically applies. See

Bishop, 940 F.3d at 1250; § 2K2.1(b)(6)(B) cmt. (n.14(B)).

C. Sentence Factor Manipulation

Lawson argues that the district court erred when it refused

to reduce Lawson’s sentence and held that law enforcement did

not engage in sentence factor manipulation when law enforcement

continued to transact with Lawson as opposed to arresting him

after the first sale.

We review a district court’s refusal to reduce a sentence due

to alleged sentencing factor manipulation for an abuse of

discretion. See United States v. Haile, 685 F.3d 1211, 1223 (11th

Cir. 2012). “While our Circuit does not recognize sentencing

entrapment as a viable defense, we do recognize the outrageous

government conduct defense, and we have considered sentencing

manipulation as a viable defense.” United States v. Ciszkowski, 492

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F.3d 1264, 1270 (11th Cir. 2007). “[S]entencing factor manipulation

occurs when the government’s manipulation of a sting operation,

even if insufficient to support a due process claim, requires that the

manipulation be filtered out of the sentencing calculus.” Id. To

constitute sentencing factor manipulation, the defendant must

demonstrate that the government engaged in extraordinary

misconduct. Id. at 1271. “This Court has never reduced a sentence

on the basis of sentencing factor manipulation.” United States v.

Lange, 862 F.3d 1290 (11th Cir. 2017); United States v. Docampo,

573 F.3d 1091, 1097–98 (11th Cir. 2009). And we have declined

previously to find sentence factor manipulation in similar contexts.

See Lange, 862 F.3d at 1296 (rejecting defendant’s argument that

government committed sentence factor manipulation where it

encouraged commission of five separate criminal transactions

instead of arresting defendant after first sale).

In Govan, we held that a court incorrectly found sentence

factor manipulation when the government bought small quantities

of crack cocaine from the defendant on four separate occasions

rather than arresting the defendant after the first purchase. United

States v. Govan, 293 F.3d 1248, 1251 (11th Cir. 2002). We held that

the government conducting several purchases of small amounts of

drugs was not more manipulative than one purchase of a large

amount, and that the government was allowed to pursue multiple

transactions to make conviction easier. Id. And in Haile, we held

that the district court did not abuse its discretion in finding that the

government did not engage in sentencing factor manipulation,

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when undercover officers involved in a sting operation originally

focused on drugs, initiated conversation about guns with the

defendant and asked him to sell them some. Haile, 685 F.3d at

1214–15, 1223.

Here, the district court did not abuse its discretion by

declining to find sentencing factor manipulation. Lawson failed to

demonstrate that the government engaged in extraordinary

misconduct. See Ciszkowski, 492 F.3d at 1271. Under our

precedent, solely allowing a defendant to continue to engage in

illegal transactions instead of arresting the defendant right away

does not amount to extraordinary misconduct, and neither does

escalating the undercover buy to include guns as well as drugs. 5

See Govan, 293 F.3d at 1251; Haile, 685 F.3d at 1214-15. Here, the

district court did not abuse its discretion in determining that the

conduct of law enforcement could not be classified as extraordinary

misconduct.

5Lawson emphasizes that because he was subject to a form of Florida house

arrest called community control at the time of these transactions, he should

have been arrested right away. However, under our precedent, the police do

not engage in extraordinary conduct by waiting for further illegal activity

before arresting, regardless of whether the unlawful activity was selling drugs

or violating the conditions of community control. Govan, 293 F.3d at 1251.

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D. Constitutional Challenges

Finally, Lawson argues that his 120-month sentence violates

the Eighth Amendment prohibition on cruel and unusual

punishment. 6

We review constitutional challenges to a sentence de novo.7

United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005).

“Outside the context of capital punishment cases, the Eighth

Amendment encompasses, at most, only a narrow proportionality

principle.” United States v. Suarez, 893 F.3d 1330, 1335–36 (11th

Cir. 2018) (quotations omitted). We first examine whether the

defendant has shown that his sentence is grossly disproportionate

to the offense. Id. at 1336; United States v. Johnson, 451 F.3d 1239,

6 Lawson also mentions in passing a violation of his Fifth Amendment

substantive due process rights. To the extent he intended to raise a separate

Fifth Amendment claim independent of his Eighth Amendment claim, he has

abandoned any substantive due process or arbitrariness claim by making them

in passing in a perfunctory manner in his brief without supporting arguments

or authority. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.

2003); United States v. Smith, 967 F.3d 1196, 1204 n.5 (11th Cir. 2020), cert.

denied, 141 S. Ct. 2538, 209 L. Ed. 2d 561 (2021)).

7 Lawson’s counsel mentioned the Eighth Amendment claim in passing during

the December 11 sentencing hearing. We would typically review an Eighth

Amendment claim of cruel and unusual punishment not raised before the

district court for plain error. United States v. Suarez, 893 F.3d 1330, 1335 (11th

Cir. 2018). However, because his claim fails under either standard of review,

we will assume without deciding that Lawson preserved it below and review

it de novo. See United States v. Carthen, 906 F.3d 1315, 1322 (11th Cir. 2018).

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1243 (11th Cir. 2006). “If we find that it is, we then consider

sentences imposed on others convicted of the same crime” to

determine if this sentence was disproportionate in comparison.

Suarez, 893 F.3d at 1336 (quotations omitted). Sentences within

statutory limits generally do not violate the Eighth Amendment

because we give substantial deference to Congress’ authority to

make decisions about punishing crimes. United States v. Bowers,

811 F.3d 412, 432 (11th Cir. 2016). “This Court has never found a

non-capital sentence of an adult to violate the Eighth

Amendment.” Id.

Here, Lawson’s sentence was not grossly disproportionate

because it was a noncapital sentence below the statutory limits.

Suarez, 893 F.3d at 1335–36. The district court sentenced Lawson

to only 120 months imprisonment, well below the statutory

maximum of 30 years’ imprisonment. Therefore, Lawson has not

shown that the sentence was grossly disproportionate.

* * *

Although we affirm Lawson’s sentence, there is a clerical

error in his judgment. In Count 4 of the judgment, the court

indicated that Lawson was convicted of possessing a firearm and

ammunition as a felon in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2). However, Count 4 in the indictment alleges solely that

Lawson possessed a firearm. Thus, we remand to the district court

with instructions to amend the judgment to correct the clerical

error. See United States v. Massey, 443 F.3d 814, 822 (11th Cir.

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2006) (“We may sua sponte raise the issue of clerical errors in the

judgment and remand with instructions that the district court

correct the errors.”).

AFFIRMED IN PART; REMANDED.