Petition for Writ of Certiorari — Tyrell Donte Curry, Petitioner v. United States
Supreme Court briefFeb 24, 2021
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APPENDIX
TABLE OF APPENDICES
Appendix A: Opinion of the U.S. Court of Appeals for the
Eleventh Circuit (Nov. 4, 2020) ............................................................. 1a
Appendix B: Petition for Rehearing En Banc (Nov. 24, 2020) ................................... 7a
Appendix C: Order Denying Petition for Rehearing En Banc (Jan. 6, 2021) .......... 46a
Appendix D: Transcript of Sentencing Hearing (Dec. 4, 2019) ................................ 47a
Appendix E: Judgment of the U.S. District Court for the
Southern District of Florida (Sept. 18, 2019) ...................................... 67a
Appendix F: Eleventh Circuit Decisions Applying Smith to
Uphold Sentencing Enhancements ..................................................... 72a
APPENDIX A
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13893
Non-Argument Calendar
________________________
D.C. Docket No. 9:19-cr-80087-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRELL DONTE CURRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 4, 2020)
Before JILL PRYOR, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
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Tyrell Curry appeals his 180-month sentence of imprisonment for possession
of a firearm and ammunition as a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Curry asserts that the district court improperly classified
him as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), based on its conclusion that Curry’s prior Florida drug convictions under
Fla. Stat. § 893.13 qualified as “serious drug offense[s].” Specifically, Curry
argues that his convictions didn’t qualify because convictions under Chapter 893 of
the Florida Statutes lack a mens rea requirement with respect to the substances’
illicit nature, as required by generic drug offenses. After careful review, we
affirm.1
The ACCA mandates a 15-year minimum sentence for a defendant
convicted of possession of a firearm as a convicted felon who has at least three
convictions for a “serious drug offense” or “violent felony.” 18 U.S.C.
§ 924(e)(1). A “serious drug offense” is defined, in relevant part, as an offense
under state law, punishable by at least ten years of imprisonment, “involving
manufacturing, distributing, or possessing with intent to manufacture or distribute,
a controlled substance.” Id. § 924(e)(2).
1
We review de novo whether a conviction qualifies as a serious drug offense under the ACCA.
United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016).
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In United States v. Smith, we held that a prior conviction under Fla. Stat.
§ 893.13 is a “serious drug offense” under the ACCA and a “controlled substance
offense” under U.S.S.G. § 4B1.2(b). 775 F.3d 1262, 1268 (11th Cir. 2014). We
concluded that we needn’t look to the generic definitions of “serious drug offense”
and “controlled substance offense” because those terms were defined and “[n]o
element of mens rea with respect to the illicit nature of the controlled substance is
expressed or implied by either definition.” Id. at 1267. We also rejected the
argument that the presumption in favor of mental culpability and the rule of lenity
required us to imply an element of the federal definitions because neither definition
was ambiguous. Id. Three years later, in United States v. Pridgeon, we rejected
the argument that Smith was wrongly decided on the ground that a conviction
under § 893.13 doesn’t include a mens rea element as to the illicit nature of the
controlled substance and affirmed Smith’s holding that convictions under § 893.13
qualify as “controlled substance offense[s].” 853 F.3d 1192, 1200 (11th Cir.
2017).
Following our decision in Smith, the Supreme Court held in Elonis v. United
States that 18 U.S.C. § 875(c), which proscribes certain threats, required that the
defendant be aware of the threatening nature of the communication. 135 S. Ct.
2001, 2004, 2012 (2015). The Supreme Court stated that, when interpreting
federal criminal statutes that are silent on the required mental state, it reads into the
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statute “only that mens rea which is necessary to separate wrongful conduct from
otherwise innocent conduct.” Id. at 2010 (quotation marks omitted).
Then, in McFadden v. United States, the Supreme Court held that the
government must prove that a defendant knew he was dealing with a controlled
substance to convict him in prosecutions involving a controlled substance
analogue, such as bath salts. 576 U.S. 186, 188–89 (2015). The Court stated that
the government can meet the knowledge requirement by showing that the
defendant possessed an analogue substance with knowledge of its features as
explained in the Controlled Substances Act—e.g., having a stimulant, depressant,
or hallucinogenic effect. Id. at 194–95. The Supreme Court explained that a
“defendant who possesses a substance with knowledge of those features knows all
of the facts that make his conduct illegal, just as a defendant who knows he
possesses heroin knows all of the facts that make his conduct illegal.” Id.
Finally, in Shular v. United States, the Supreme Court affirmed a decision of
this Court applying Smith to conclude that a prior drug conviction under Fla. Stat.
§ 893.13 qualified as a “serious drug offense” within the meaning of the ACCA.
140 S. Ct. 779, 782–84 (2020). The petitioner there argued that a court should
look to the elements of the generic offenses listed in the “serious drug offense”
definition and that those generic offenses include a mens rea element of knowledge
that the substance was illicit. Id. at 782. But the Supreme Court held that a court
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determining whether a predicate offense qualifies as a serious drug offense need
only consider whether the predicate offense’s elements necessarily entail the types
of conduct identified in the ACCA definition, rather than engage in a “genericoffense matching exercise.” Id. at 784 (quotation marks omitted). The Supreme
Court also noted that the petitioner overstated Florida’s disregard for mens rea in
§ 893.13 because “a defendant unaware of the substance’s illicit nature can raise
that unawareness as an affirmative defense, in which case the standard jury
instructions require a finding of knowledge beyond a reasonable doubt.” Id. at
787.
Under the prior-panel-precedent rule, an earlier panel’s holding is binding on
all subsequent panels unless the Supreme Court or this Court sitting en banc
overrules it. United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011). “To
constitute an overruling for the purposes of this prior panel precedent rule, the
Supreme Court decision must be clearly on point.” United States v. Kaley, 579
F.3d 1246, 1255 (11th Cir. 2009) (quotation marks omitted). Additionally, it must
“actually abrogate or directly conflict with, as opposed to merely weaken, the
holding of the prior panel.” Id.
Here, the district court did not err in classifying Curry’s prior drug
convictions under Fla. Stat. § 893.13 as “serious drug offenses” for ACCA
purposes. Curry’s argument that his prior Chapter 893 convictions are not serious
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drug offenses because the state law lacked a mens rea element is foreclosed by this
Court’s decision in Smith. See Smith, 775 F.3d at 1267; Jordan, 635 F.3d at 1189.
Curry’s assertion that Shular didn’t address whether the career-offender guideline
requires a predicate offense to have an element of mens rea regarding the illicit
nature of the controlled substance is irrelevant because Shular would have had to
abrogate or directly conflict with Smith for this Court not to apply the prior-panelprecedent rule. See Kaley, 579 F.3d at 1255.
Additionally, Curry has not shown that Elonis or McFadden overruled or
abrogated Smith because neither decision is clearly on point. Elonis and
McFadden both concerned the mens rea required to convict a defendant under
certain statutes and didn’t address the interpretation of “serious drug offense” in
the context of a sentencing enhancement or whether its definition included a mens
rea requirement. See Elonis, 135 S. Ct. at 2010; McFadden, 576 U.S. at 188.
Accordingly, the district court didn’t err in classifying Curry’s prior drug
convictions under Fla. Stat. § 893.13 as serious drug offenses because Curry’s
argument is foreclosed by Smith, which was not overruled or abrogated by Shular,
Elonis, or McFadden.
AFFIRMED.
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APPENDIX B
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No. 19-13893-CC
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
______________
UNITED STATES OF AMERICA,
Plaintiff/appellee,
v.
TYRELL DONTE CURRY,
Defendant/appellant.
______________
On Appeal from the United States District Court
for the Southern District of Florida
______________
PETITION FOR REHEARING EN BANC
BY APPELLANT TYRELL DONTE CURRY
______________
MICHAEL CARUSO
FEDERAL PUBLIC DEFENDER
ANDREW L. ADLER
ASS’T FEDERAL PUBLIC DEFENDER
Attorneys for Appellant
One E. Broward Blvd., Suite 1100
Ft. Lauderdale, FL 33301
(954) 356-7436
THIS CASE IS ENTITLED TO PREFERENCE
(CRIMINAL CASE)
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CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT
United States v. Tyrell Donte Curry
Case No. 19-13893-CC
Appellant files this Certificate of Interested Persons and Corporate
Disclosure Statement, as required by 11th Cir. R. 26.1 and 35-5(b).
Adler, Andrew L.
Adler, Robert E.
Brannon, Hon. Dave Lee
Cannon, Aileen M.
Caruso, Michael
Curry, Tyrell Donte
Fajardo Orshan, Ariana
Matthewman, Hon. William
Matzkin, Daniel
McMichael, Adam C.
Nucci, Edward C.
Reinhart, Hon. Bruce E.
Rivero, Laura Thomas
Rosenberg, Hon. Robin L.
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EN BANC STATEMENT OF COUNSEL
In support of this petition, and pursuant to 11th Cir. 35-5,
undersigned counsel states:
I express a belief, based on a reasoned and studied professional
judgment, that this appeal involves the following question of exceptional
importance: Whether the presumption of mens rea applicable to criminal
laws applies to the Armed Career Criminal Act’s (“ACCA”) definition of a
“serious drug offense” in 18 U.S.C. § 924(e)(2)(A)(ii), thereby rendering
Fla. Stat. § 893.13 categorically overbroad.
/s/ Andrew L. Adler
Attorney of Record for Tyrell Curry
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT ............................................................... C-1
EN BANC STATEMENT OF COUNSEL .................................................. i
TABLE OF CITATIONS ......................................................................... iii
STATEMENT OF THE ISSUE MERITING EN BANC REVIEW ........... 1
COURSE OF PROCEEDINGS & DISPOSITION OF THE CASE .......... 2
A.
LEGAL BACKGROUND ..................................................................... 2
B.
PROCEEDINGS BELOW.................................................................... 5
ARGUMENT & CITATIONS TO AUTHORITY ....................................... 6
I.
SMITH CONFLICTS WITH SUPREME COURT PRECEDENT.................. 6
II.
SMITH HAS ENORMOUS PRACTICAL IMPACT ................................. 19
CONCLUSION ........................................................................................ 21
CERTIFICATE OF COMPLIANCE ........................................................ 22
CERTIFICATE OF SERVICE................................................................. 23
APPENDIX A (Panel Op.) & B (Cases Applying Smith) .................... App.
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TABLE OF CITATIONS
CASES
Adkins v. State,
96 So. 3d 412 (Fla. 2012)............................................................ 6, 10, 11
Alleyne v. United States,
570 U.S. 99 (2013) .......................................................................... 13, 15
Almendarez-Torres v. United States,
523 U.S. 244 (1998) .............................................................................. 13
Apprendi v. New Jersey,
530 U.S. 466 (2000) .............................................................................. 13
Begay v. United States,
553 U.S. 137 (2008) .............................................................................. 12
Bifulco v. United States,
447 U.S. 381 (1980) .............................................................................. 14
Dawkins v. State,
547 A.2d 1041 (Md. 1988) .................................................................... 12
Dean v. United States,
556 U.S. 568 (2009) ................................................................ 13, passim
Elonis v. United States,
135 S. Ct. 2001 (2015) .................................................................. 7, 8, 19
Harris v. United States,
536 U.S. 545 (2002) .............................................................................. 15
Johnson v. United States,
576 U.S. 591 (2015) .............................................................................. 14
Leocal v. Ashcroft,
543 U.S. 1 (2004) .................................................................................. 12
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Liparota v. United States,
471 U.S. 419 (1985) ...................................................................... 8, 9, 14
McFadden v. United States,
576 U.S. 186 (2015) ........................................................................ 11, 19
McNeil v. United States,
563 U.S. 816 (2011) .............................................................................. 12
Morissette v. United States,
342 U.S. 246 (1952) ............................................................................ 7, 9
Quarles v. United States,
139 S. Ct. 1872 (2019) .......................................................................... 12
Rehaif v. United States,
139 S. Ct. 2191 (2019) ............................................................ 7, 8, 10, 19
Shepard v. United States,
544 U.S. 13 (2005) ................................................................................ 13
Shular v. United States,
140 S. Ct. 779 (2020) ................................................................ 3, passim
Staples v. United States,
511 U.S. 600 (1994) .................................................................. 7, passim
United States v. Batchelder,
442 U.S. 114 (1979) .............................................................................. 14
United States v. Lanier,
520 U.S. 259 (1997) .............................................................................. 14
United States v. Smith,
775 F.3d 1262 (11th Cir. 2014) ................................................ 2, passim
United States v. U.S. Gypsum Co.,
438 U.S. 422 (1978) ...................................................................... 7, 8, 14
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United States v. X-Citement Video, Inc.,
513 U.S. 64 (1994) ........................................................................ 7, 8, 10
STATUTES
18 U.S.C. § 16(a) ...................................................................................... 12
18 U.S.C. § 922(g)(1) .................................................................................. 5
18 U.S.C. § 924(c) .................................................................................... 15
18 U.S.C. § 924(e)(2)(A)(i) ....................................................................... 11
18 U.S.C. § 924(e)(2)(A)(ii) ........................................................... i, passim
Fla. Stat. § 775.082(3)b ............................................................................. 2
Fla. Stat. § 893.03(2)(a)4 ........................................................................... 2
Fla. Stat. § 893.101(2) ........................................................................... 2, 6
Fla. Stat. § 893.13 ....................................................................... 2, passim
U.S. SENTENCING GUIDELINES
U.S.S.G. § 4B1.2(b) .................................................................................... 2
OTHER AUTHORITIES
4 W. Blackstone, Commentaries on the Laws of England (1769) ............ 7
Shular v. United States,
Brief for United States (Nov. 22, 2019) (U.S. No. 18-6662) ................ 13
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STATEMENT OF THE ISSUE MERITING EN BANC REVIEW
Whether the presumption of mens rea applies to the ACCA’s
definition of “serious drug offense” in 18 U.S.C. § 924(e)(2)(A)(ii).
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COURSE OF PROCEEDINGS & DISPOSITION OF THE CASE
A. LEGAL BACKGROUND
1.
As relevant here, the ACCA defines “serious drug offense” 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.” 18 U.S.C. § 924(e)(2)(A)(ii).
In Florida, it is an offense to “sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled
substance.” Fla. Stat. § 893.13(1)(a). A violation involving cocaine is a
second-degree felony carrying a fifteen-year maximum.
Fla. Stat.
§§ 893.13(1)(a)1, 893.03(2)(a)4, 775.082(3)b. However, “knowledge of the
illicit nature of a controlled substance is not an element” of the offense.
Fla. Stat. § 893.101(2). Rather, “[l]ack of knowledge of the illicit nature
of a controlled substance is an affirmative defense.” Id.
2.
In United States v. Smith, 775 F.3d 1262 (11th Cir. 2014), this
Court held that § 893.13 is a “serious drug offense” under the ACCA, as
well as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). The
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Court rejected two arguments based on the fact that § 893.13 lacks a
mens rea element with respect to the illicit nature of the substance.
First, the defendant argued that the ACCA’s “serious drug offense”
definition in § 924(e)(2)(A)(ii) enumerated “generic” drug offenses; and,
unlike § 893.13, those generic offenses required a mens rea element with
respect to the illicit nature of the substance. Id. at 1266–67. The Court
rejected the premise of that argument, concluding that § 924(e)(2)(A)(ii)
did not enumerate generic offenses at all. Id. at 1267.
Second, the defendant argued that, even if § 924(e)(2)(A)(ii) did not
enumerate generic offenses, “the presumption in favor of mental
culpability” still required the Court “to imply an element of mens rea in
the federal definitions” with respect to the illicit nature of the substance.
Id. The Court rejected that argument too, holding that the presumption
of mens rea, like the rule of lenity, “appl[ies] to sentencing enhancements
only when the text of the statute . . . is ambiguous,” and the definition in
§ 924(e)(2)(A)(ii) was not ambiguous. Id.
3.
In Shular v. United States, 140 S. Ct. 779 (2020), the Supreme
Court upheld Smith’s first holding but declined to address the second.
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The petitioner argued that § 924(e)(2)(A)(ii) “require[d] ‘a genericoffense matching exercise’: A court should define the elements of the
generic offenses identified in § 924(e)(2)(A)(ii), then compare those
elements to the elements of the state offense.”
Id. at 784. The
government argued that a court instead “should ask whether the state
offense’s elements necessarily entail one of the types of conduct identified
in § 924(e)(2)(A)(ii).” Id. (quotation marks and citation omitted).
The Supreme Court agreed with the government (and Smith) that
the terms in § 924(e)(2)(A)(ii)—i.e., “manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled
substance”—referred to conduct, not generic offenses. See id. at 785–87.
That alone resolved the case, for it rejected the only argument the
petitioner had properly made. In footnote 3, the Court observed that
“Shular argue[d] in the alternative that even if § 24(e)(2)(A)(ii) does not
call for a generic-offense-matching analysis, it require[d] knowledge of
the substance’s illicit nature.” Id. at 787 n.3. But the Court did “not
address that argument” because it fell “outside the question presented,”
and “Shular disclaimed it at the certiorari stage.” Id.
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B. PROCEEDINGS BELOW
Curry pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). (DE 6, 24, 36). He was subject to the
ACCA enhancement based on three prior convictions under § 893.13—
two for the sale of cocaine, and one for possession with intent to distribute
cocaine. (PSI ¶ 25; DE 22).
Curry objected to the enhancement, arguing that his § 893.13
convictions were not “serious drug offenses” under the ACCA because
they lacked any mens rea element with respect to the illicit nature of the
substance. (DE 18; DE 37:4–7). The district court overruled the objection
based on Smith and sentenced him to the fifteen-year mandatory
minimum. (DE 24:2; DE 37:8, 16–19).
On appeal, Curry reiterated his argument. He acknowledged that
Smith foreclosed it, but he sought to preserve it for further review. He
further observed that, although Shular had since upheld Smith’s first
holding, it had not addressed Smith’s second holding.
This Court affirmed his sentence. It concluded that, under the prior
panel rule, Smith remained binding precedent that had not been
abrogated by subsequent Supreme Court precedent. See Appendix A.
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ARGUMENT & CITATIONS TO AUTHORITY
I.
SMITH CONFLICTS WITH SUPREME COURT PRECEDENT
In Shular, the Supreme Court confirmed that Ҥ 924(e)(2)(A)(ii)
requires a categorical approach,” such that “[a] court must look only to
the state offense’s elements, not the facts of the case,” to determine
whether it qualifies as a “serious drug offense.” 140 S. Ct. at 784. With
respect to § 893.13, the Florida legislature has “expressly eliminate[d]
knowledge of the illicit nature of the controlled substance as an element”
of the offense. Adkins v. State, 96 So. 3d 412, 416 (Fla. 2012) (describing
§ 893.101(2)). Although Shular held that § 924(e)(2)(A)(ii) listed conduct
rather than offenses, it did not address whether the conduct—“involving
manufacturing, distributing, or possessing with intent to manufacture or
distribute,
a
controlled
substance”—requires
knowledge
of
the
substance’s illicit nature. As explained below, the presumption of mens
rea means that it does. As a result, § 893.13 is categorically overbroad
vis-à-vis § 924(e)(A)(ii), and so is not a “serious drug offense.”
1.
It is a “familiar proposition that the existence of a mens rea is
the rule of, rather than the exception to, the principles of Anglo-American
criminal jurisprudence.” United States v. U.S. Gypsum Co., 438 U.S. 422,
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436 (1978) (citation and brackets omitted). That proposition derives from
a “basic principle that underlies the criminal law, namely, the
importance of showing what Blackstone called ‘a vicious will.’” Rehaif v.
United States, 139 S. Ct. 2191, 2196 (2019) (quoting 4 W. Blackstone,
Commentaries on the Laws of England 21 (1769)). As Justice Jackson
explained, a “relation between some mental element and punishment for
a harmful act” “is as universal and persistent in mature systems of law
as belief in freedom of the human will and a consequent ability and duty
of the individual to choose between good and evil.” Morissette v. United
States, 342 U.S. 246, 250–51 (1952).
This venerable principle gave rise to a “presumption that a
defendant must know the facts that make his conduct illegal.” Staples v.
United States, 511 U.S. 600, 619 (1994). Employing that presumption,
the Supreme Court has repeatedly “interpreted [criminal] statutes to
include a scienter requirement even where the statutory text is silent on
the question.” Rehaif, 139 S. Ct. at 2197; accord Elonis v. United States,
135 S. Ct. 2001, 2009 (2015); United States v. X-Citement Video, Inc., 513
U.S. 64, 70 (1994). Thus, “far more than the simple omission of the
appropriate phrase from the statutory definition is necessary to justify
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dispensing with an intent requirement.” U.S. Gypsum Co., 438 U.S.
at 438; see Liparota v. United States, 471 U.S. 419, 425–26 (1985)
(explaining that the presumption applies absent contrary indication); XCitement Video, 513 U.S. at 70 (applying the presumption, even though
“the most grammatical reading of the statute” was to the contrary).
Implying “[s]center requirements advance th[e] basic principle of
criminal law by helping to separate those who understand the wrongful
nature of their act from those who do not.” Rehaif, 139 S. Ct. at 2196
(quotation omitted). “The cases in which [the Supreme Court] ha[s]
emphasized scienter’s importance in separating wrongful from innocent
acts are legion.” Id. at 2196–97; see, e.g., id. (presumption supported
requiring knowledge of felon status because that is what rendered
firearm possession wrongful rather than innocent); Elonis, 135 S. Ct.
at 2009–11 (summarizing cases and applying presumption to require
knowledge of the threatening nature of a communication because that is
what made it wrongful rather than innocent); X-Citement Video Inc., 513
U.S. at 70–73 (applying presumption to require knowledge that
pornography depicted a minor because that was “the crucial element”
separating wrongful from protected conduct); Staples, 511 U.S. at 605–
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20 (applying presumption to require knowledge of the characteristics
subjecting a firearm to regulation because ignorance of those
characteristics would make possession “entirely innocent” and consistent
with a “long tradition of widespread lawful gun ownership”); Liparota,
471 U.S. at 425–27 (applying presumption to require knowledge that food
stamp possession was unauthorized because the statute would otherwise
“criminalize a broad range of apparently innocent conduct”).
“Historically, the penalty imposed under a statute has [also] been a
significant consideration in determining whether the statute should be
construed as dispensing with mens rea.” Staples, 511 U.S. at 616. The
Supreme Court has observed that “courts have construed statutes to
dispense with mens rea” where the “‘penalties commonly are relatively
small.’” Id. at 617–18 (quoting Morissette, 342 U.S. at 256). Conversely,
“commentators collecting the early cases have argued that offenses
punishable by imprisonment . . . must require mens rea.” Id. at 617
(citations omitted). After all, “[i]n a system that generally requires a
‘vicious will’ to establish a crime, imposing severe punishments for
offenses that require no mens rea would seem incongruous.” Id. (internal
citation omitted).
Thus, the Court has recognized that, where
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“dispensing with mens rea would require the defendant to have
knowledge only of traditionally lawful conduct, a severe penalty is a
further factor tending to suggest that Congress did not intend to
eliminate a mens rea requirement.” Id. at 618; see Rehaif, 139 S. Ct.
at 2197 (presumption was supported by fact that the crime “carr[ied] a
potential penalty of 10 years in prison that we have previously described
as harsh’”) (citation omitted); X-Citement, 513 U.S. at 72 (same).
2.
The presumption of mens rea applies with full force to
§ 924(e)(2)(A)(ii): a “serious drug offense” requires knowledge of the illicit
nature of the controlled substance being manufactured, distributed, or
possessed. Were it otherwise, the definition would encompass wholly
innocent conduct, such as distributing cocaine that one mistakenly
believed to be flour or baking soda. See Adkins, 96 So. 3d at 431–33
(Perry, J., dissenting) (providing numerous every-day examples of
innocent possession of a controlled substance). Knowledge of the illicit
nature of the substance is indispensable, for it provides the crucial
element separating wrongful from innocent conduct. As in the cases cited
above, that mens rea must be read in to § 924(e)(2)(A)(ii) in order to avoid
penalizing innocent (as opposed to blameworthy) conduct.
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That the ACCA is a harsh penalty further supports applying the
presumption of mens rea to § 924(e)(2)(A)(ii).
The enhancement
transforms a ten-year statutory maximum penalty into a fifteen-year
mandatory-minimum penalty. Where the enhancement is based on a
prior “serious drug offense,” that offense must require knowledge of the
illicit nature of the substance. Otherwise, the ACCA will mandate at
least five additional years in prison based on a prior offense like § 893.13,
the elements for which encompass blameless conduct.
Finally, the presumption applies to § 924(e)(2)(A)(ii) because it is
silent on the mens rea question, and there is no indication that Congress
intended a “serious drug offense” to include those that do not require
knowledge of the substance’s illicit nature.
indications point the other way.
To the contrary, all
To begin, the other “serious drug
offense” definition in § 924(e)(2)(A)(i) incorporates federal drug offenses,
which do require mens rea with respect to the substance’s illicit nature.
McFadden v. United States, 576 U.S. 186, 188–89, 191–95 (2015).
Moreover, Florida is only one of two states that does not require
such mens rea, Adkins, 96 So. 3d at 423 n.1 (Pariente, J., concurring), and
most states likewise required it in 1986 when the ACCA was enacted,
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Dawkins v. State, 547 A.2d 1041, 1046 n.10 (Md. 1988). Thus, it is
doubtful that Congress intended manufacturing, distributing, or
possessing with intent to distribute a controlled substance to cover drug
offenses that did not require knowledge of the substance’s illicit nature.
See Quarles v. United States, 139 S. Ct. 1872, 1878–79 (2019) (looking to
“the body of state law as of 1986” to ascertain Congress’ intent).
Furthermore, in holding that a strict-liability DUI offense was not
a “violent felony” under the ACCA’s residual clause, the Supreme Court
has explained that the ACCA seeks to target “the kind of person who
might deliberately point the gun and pull the trigger.” Begay v. United
States, 553 U.S. 137, 146 (2008). In accordance with that statutory
purpose, the Supreme Court has also held that more than a negligent use
of force is required to satisfy the ACCA’s elements clause. Leocal v.
Ashcroft, 543 U.S. 1 (2004) (interpreting identical language in 18 U.S.C.
§ 16(a)); see Shular, 140 S. Ct. at 785–86 (interpreting “serious drug
offense” by looking to the “neighboring provision” defining “violent
felony”); McNeil v. United States, 563 U.S. 816, 821–22 (2011) (same,
emphasizing “broader context of the statute as a whole”) (citation
omitted). That statutory purpose would not be served by basing the
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enhancement on prior drug offenses that did not require the defendant
to know the illicit nature of the substance.
3.
Although nothing in the text, structure, or purpose of the
ACCA dispels the presumption, the government objected to its
application in Shular on the ground that the ACCA is a sentencing
enhancement rather than an element. U.S. Br. 28 (Nov. 22, 2019). But
the ACCA functions like an element, increasing the statutory minimum
and maximum. The only reason it is not an “element” is because of
Almendarez-Torres v. United States, 523 U.S. 244 (1998), which created
a “prior-conviction” exception to the rule of Apprendi v. New Jersey, 530
U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013).
Although never overruled, “a majority of the Court” later agreed it was
“wrongly decided.” Shepard v. United States, 544 U.S. 13, 27–28 (2005)
(Thomas, J., concurring in part and concurring in the judgment).
Regardless, Justice Stevens has explained that “there is no sensible
reason for treating [mandatory-minimum provisions] differently from
offense elements for purposes of the presumption of mens rea.” Dean v.
United States, 556 U.S. 568, 580 (2009) (Stevens, J., dissenting) (internal
citation omitted). Indeed, they “have substantially the same effect on a
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defendant’s liberty as aggravated offense provisions.” Id. Thus, “[a]bsent
a clear indication that Congress intended to create a strict liability
enhancement, courts should presume that a provision that mandates
enhanced criminal penalties requires proof of intent.” Id. at 581.
Justice Stevens further observed that this “conclusion is bolstered
by the fact that [the Supreme Court] ha[s] long applied the rule of
lenity—which is similar to the mens rea rule in both origin and purpose—
to provisions that increase criminal penalties as well as those that
criminalize conduct.” Id. (citing cases, including Bifulco v. United States,
447 U.S. 381, 387 (1980)); see Liparota, 471 U.S. at 427 (stating that rule
of lenity “directly supports,” and “is in keeping with,” the mens rea
presumption); U.S. Gypsum Co., 438 U.S. at 437 (same). Moreover, the
rule of lenity is a “junior version” of the void-for-vagueness doctrine,
United States v. Lanier, 520 U.S. 259, 266 (1997) (citation omitted), which
likewise “appl[ies] not only to statutes defining elements of crimes, but
also to statutes fixing sentences,” Johnson v. United States, 576 U.S. 591,
596 (2015) (citing United States v. Batchelder, 442 U.S. 114, 123 (1979)).
Indeed, Johnson employed it to invalidate the ACCA’s residual clause.
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Although Justice Stevens dissented in Dean, the majority did not
disagree with his assertion that the presumption of mens rea applies to
mandatory-minimum provisions. At issue in Dean was a provision in 18
U.S.C. § 924(c) imposing an enhanced mandatory-minimum sentence of
ten years (rather than five years) where the firearm “is discharged”
during the offense of using or carrying a firearm in relation to a violent
or drug-trafficking crime.
The question in Dean was whether the
enhancement “contains a requirement that the defendant intend to
discharge the firearm.” 556 U.S. at 572. The Court held it did not. Id.
As relevant here, the defendant argued that the presumption of
mens rea applied. Id. at 574–75. The Court declined to apply it, but not
because the provision represented a mandatory-minimum enhancement
rather than an element.1 Rather than dispute that the presumption
applied to sentencing provisions, the Court acknowledged that it is
“unusual to impose criminal punishment for the consequences of purely
accidental conduct.” Id. at 575. The Court instead declined to apply the
presumption because “the statutory text and structure convince[d] [the
Although Alleyne later held that any fact (other than a prior conviction)
increasing the statutory minimum is an element, the law was otherwise
when Dean was decided. See Harris v. United States, 536 U.S. 545 (2002).
1
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Court] that the discharge provision does not contain an intent
requirement.” Id. at 577; see id. at 572–74.
The Court also explained that imposing the enhancement based on
accidental discharge did not penalize “blameless” conduct, but rather the
“unintended consequences of . . . unlawful acts.” Id. at 575–76. The
defendant was “already guilty of misconduct twice over: a violent or drug
trafficking offense and the use, carrying, or possession of a firearm in the
course of that offense.” Id. at 576. And the enhancement “account[ed]
for the risk of harm resulting from the manner in which the crime is
carried out.” Id. “Those criminals wishing to avoid the penalty for an
inadvertent discharge can lock or unload the firearm, handle it with care
during the underlying violent or drug trafficking crime, leave the gun at
home, or—best yet—avoid committing the felony in the first place.” Id.
The reasons for declining to apply the presumption of mens rea in
Dean do not exist here.
As explained, the ACCA’s statutory text,
structure, and purpose support rather than rebut the presumption’s
application to § 924(e)(2)(A)(ii).
Moreover, unlike the discharge
enhancement in Dean, the ACCA is based on prior convictions that are
entirely divorced from the instant offense. Thus, they do not reflect a
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“risk of harm resulting from the manner in which the [felon-inpossession] crime is carried out.”
Id. at 576.
Nor does the ACCA
otherwise penalize wrongful conduct where the prior “serious drug
offense” is § 893.13. Unlike accidental firearm discharge during a violent
or drug-trafficking crime, § 893.13 does not reflect blameworthy conduct
because the offender need not know that the substance is illicit.
4.
In one short paragraph, this Court in Smith declined to apply
the mens rea presumption to § 924(e)(2)(A)(ii) for a different reason. It
asserted that, like the rule of lenity, the presumption applies only where
the statute is ambiguous.
775 F.3d at 1267.
That reasoning is
incompatible with Supreme Court precedent.
In Staples, the Court applied the presumption despite finding no
ambiguity. The Court reiterated that the rule of lenity “is reserved for
cases where, after seizing everything from which aid can be derived, the
Court is left with an ambiguous statute.” 511 U.S. at 619 n.17 (citations
and brackets omitted). But, the Court explained, “the background rule
of the common law favoring mens rea and the substantial body of
precedent we have developed construing statutes that do not specify a
mental element provide considerable interpretive tools from which we
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can seize aid, and they do not leave us with the ultimate impression that
[the statute] is grievously ambiguous.”
Id. (quotation marks and
brackets omitted). Because the presumption resolved the question in the
defendant’s favor and left no ambiguity, the Court found it “unnecessary
to rely on the rule of lenity.” Id.
Staples demonstrates that Smith erroneously conflated the
presumption with the rule of lenity. The presumption is one of many
interpretive tools that are employed before determining whether a
statute is grievously ambiguous.
Yet Smith reasoned that the
presumption of mens rea does not apply unless there is enough ambiguity
to trigger the rule of lenity. That misunderstanding relegates the mens
rea presumption to a canon of last resort. And it renders the presumption
entirely unnecessary; lenity alone could do all the work.
Dean confirms Smith’s error. The Court declined to apply the rule
of lenity because it found no grievous ambiguity. 556 U.S. at 577. Were
Smith correct, the Court would have simply declined to apply the
presumption for the same reason. It did not. Instead, the Court declined
to apply the presumption because the statutory text and structure
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evinced Congress’ intent to dispense with mens rea, and because the
discharge enhancement did not punish blameless conduct.
In short, Smith’s refusal to apply the mens rea presumption due to
a lack of grievous ambiguity is incompatible with the analysis in Staples
and Dean. And Smith otherwise failed to explain why the presumption
did not apply to § 924(e)(2)(A)(ii).
II.
SMITH HAS ENORMOUS PRACTICAL IMPACT
In this Circuit, § 893.13 is perhaps the most common predicate for
enhancements under both the ACCA and Guidelines. Since Smith was
decided, this Court has relied on it to uphold enhancements in over 100
appeals. See Appendix B (collecting cases). And that conservative figure
does not include enhancements that went unchallenged or un-appealed
due to the adverse precedent. Thus, Smith already accounts for literally
decades—and likely centuries!—of extra prison time for defendants in
this Circuit. Before continuing down that path, this Court should pause
to address whether Smith comports with Supreme Court precedent
The time is ripe to do so. There have been post-Smith Supreme
Court developments that are important but do not abrogate Smith—e.g.,
McFadden, Elonis, Rehaif. And Shular just declined to address Smith’s
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refusal to apply the presumption to § 924(e)(2)(A)(ii). Absent Supreme
Court review, en banc review is the only way for defendants in this
Circuit to have confidence that their sentences are lawful. Due to the
prior panel rule, Smith will continue to prevent panels from accepting
the arguments above, even if they are correct. En banc review is thus
essential to ensuring that those arguments are meaningfully considered.
In that regard, even were the full Court to ultimately reject those
arguments, the rigors of en banc review would nonetheless promote the
sound administration of justice. Smith failed to analyze any Supreme
Court precedent. The stakes are too high to rest on its terse reasoning.
Continuing to invoke Smith to uphold decades of extra prison time will
erode faith in the criminal-justice system. And that is particularly true
given the nature of the defense argument—i.e., that sentences are
skyrocketing due to a prior offense encompassing blameless conduct.
While rehearing requires a substantial use of scarce resources, it is
a win-win proposition here. If Smith is wrong, en banc review will stop
a miscarriage of justice from being perpetuated en masse. If Smith is
right, en banc review will assure defendants that their sentences comport
with Supreme Court precedent. Either way, it’s worth the candle.
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CONCLUSION
Curry respectfully requests that this Court vacate the panel opinion
and rehear this case en banc.
Respectfully submitted,
MICHAEL CARUSO
FEDERAL PUBLIC DEFENDER
/s/ Andrew L. Adler
ANDREW L. ADLER
ASS’T FEDERAL PUBLIC DEFENDER
Attorneys for Appellant
One E. Broward Blvd., Suite 1100
Ft. Lauderdale, FL 33301
(954) 356-7436
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 35(b)(2)(A), because it contains 3,895 words, excluding
the parts of the brief exempted by 11th Cir. R. 35-1. I certify that this
brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type-style requirements of Fed. R. App. P. 32(a)(6), because it has
been prepared in a proportionally spaced typeface using Microsoft Word
2010 in Century Schoolbook 14-point font.
/s/ Andrew L. Adler
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CERTIFICATE OF SERVICE
I certify that on this 24th day of November 2020, I electronically
filed the foregoing document with the Clerk of the Court using CM/ECF,
and it is being served this day via CM/ECF on Laura Rivero, Assistant
U.S. Attorney, 99 N.E. 4th Street, Suite 523, Miami, FL 33132.
/s/ Andrew L. Adler
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APPENDIX B
(11th Cir. Decisions Applying Smith)
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Eleventh Circuit Decisions Applying Smith to Reject a Challenge to an
Enhanced Sentence Based on a Prior Conviction Under Fla. Stat. § 893.13
1. United States v. Curry, __ F. App’x __, 2020 WL 6483118 (11th Nov. 4, 2020)
(ACCA)
2. United States v. Davis, __ F. App’x __, 2020 WL 6375110, at *1 (11th Cir. Oct.
30, 2020) (ACCA)
3. United States v. Cius, __ F. App’x __, 2020 WL 6165855, at *2 (11th Cir. Oct.
22, 2020) (Guidelines)
4. United States v. Billings, __ F. App’x __, 2020 WL 5870245, at *1 (11th Cir.
Oct. 2, 2020) (Guidelines)
5. United States v. White, __ F. App’x __, 2020 WL 5629770, at *1 (11th Cir. Sept.
21, 2020) (ACCA)
6. United States v. Samuel, 826 F. App’x 806 (11th Cir. Sept. 8, 2020) (Guidelines)
7. United States v. Hunter, 823 F. App’x 824 (11th Cir. Aug. 14, 2020) (ACCA &
Guidelines)
8. Broderick v. United States, 2020 WL 6280808, at *1 (11th Cir. Aug. 13, 2020)
(Guidelines)
9. United States v. Colston, 824 F. App’x 659, 661 (11th Cir. Aug. 5, 2020)
(Guidelines)
10. United States v. Kelly, 813 F. App’x 466, 467 (11th Cir. July 23, 2020)
(Guidelines)
11. United States v. Simmons, 820 F. App’x 923, 926 (11th Cir. July 15, 2020)
(ACCA)
12. United States v. Jones, 814 F. App’x 553 (11th Cir. July 6, 2020) (Guidelines)
13. United States v. Hollie, 817 F. App’x 880, 883 n.3 (11th Cir. June 24, 2020)
(ACCA)
14. United States v. McClures, 817 F. App’x 814, 817 (11th Cir. June 11, 2020)
(ACCA)
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15. United States v. Campbell, 816 F. App’x 384 (11th Cir. June 4, 2020)
(Guidelines)
16. United States v. Culp, 808 F. App’x 1019 (11th Cir. June 2, 2020) (ACCA)
17. United States v. Miller, 806 F. App’x 963 (11th Cir. May 21, 2020) (Guidelines)
18. United States v. Moore, 814 F. App’x 465, 468 (11th Cir. May 13, 2020) (ACCA)
19. United States v. Givins, 806 F. App’x 929 (11th Cir. May 5, 2020) (Guidelines)
20. United States v. Owens, 808 F. App’x 917, 921 (11th Cir. Apr. 7, 2020) (ACCA)
21. United States v. Ross, 807 F. App’x 984, 989–90 (11th Cir. Mar. 7, 2020) (ACCA)
Post-Shular
Pre-Shular
22. United States v. Alexander, 792 F. App’x 763, 764 (11th Cir. Feb. 6, 2020)
(Guidelines)
23. Sereme v. United States, 2020 WL 917254, at *2 (11th Cir. Jan. 10, 2020)
(Guidelines)
24. Gray v. United States, 796 F. App’x 610, 613–14 (11th Cir. Dec. 5, 2019) (ACCA)
25. United States v. Bishop, 940 F.3d 1242, 1253–54 (11th Cir. Oct. 11, 2019)
(Guidelines)
26. United States v. Anderson, 777 F. App’x 482, 483 (11th Cir. Sept. 19, 2019)
(ACCA)
27. United States v. Golden, 786 F. App’x 164, 166 (11th Cir. Aug. 26, 2019) (ACCA)
28. United States v. Anderson, 774 F. App’x 608, 609 (11th Cir. Aug. 2, 2019))
(ACCA)
29. Tribue v. United States, 929 F.3d 1326, 1331 (11th Cir. July 11, 2019) (ACCA)
30. United States v. Hayes, 779 F. App’x 574, 577–78 (11th Cir. June 12, 2019)
(ACCA)
31. United State v. Madrigal, 770 F. App’x 553 (11th Cir. May 14, 2019)
(Guidelines)
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32. United States v. Bennett, 770 F. App’x 547 (11th Cir. May 10, 2019) (ACCA)
33. United States v. Smith, 770 F. App’x 955, 957 (11th Cir. Apr. 30, 2019)
(Guidelines)
34. Muhammad v. United States, 768 F. App’x 897, 900 n.3 (11th Cir. Apr. 9, 2019)
(ACCA)
35. United States v. Howard, 767 F. App’x 779, 784–85 (11th Cir. Apr. 2, 2019)
(Guidelines)
36. United States v. Chambliss, 762 F. App’x 751, 758 (11th Cir. Feb. 27, 2019)
(ACCA)
37. Griffin v. United States, 2019 WL 2744723, at *2 (11th Cir. Feb. 19, 2019)
(ACCA & Guidelines)
38. United States v. Jimerson, 749 F. App’x 950 (11th Cir. Jan 24, 2019)
(Guidelines)
39. United States v. Wilson, 754 F. App’x 930, 932 (11th Cir. Dec. 17, 2018) (ACCA)
40. United States v. Burton, 757 F. App’x 883, 884 n.1 (11th Cir. Dec. 11, 2018)
(Guidelines)
41. United States v. Peraza, 754 F. App’x 908, 909–10 (11th Cir. Nov. 9, 2018)
(Guidelines)
42. United States v. Reed, 752 F. App’x 851, 856–57 (11th Cir. Oct. 19, 2018)
(ACCA)
43. Broomfield v. United States, 2018 WL 6504083 at *2 (11th Cir. Oct. 18, 2018)
(ACCA)
44. United States v. Brown, 750 F. App’x 892, 896 n.4 (11th Cir. Oct. 1, 2018)
(ACCA)
45. United States v. ‘Hunter, 749 F. App’x 811, 813 (11th Cir. Sept. 12, 2018)
(ACCA)
46. United States v. Shular, 736 F. App’x 876, 877 (11th Cir. Sept. 5, 2018) (ACCA)
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47. United States v. Patrick, 747 F. App’x 797, 799 (11th Cir. Aug. 31, 2018)
(ACCA)
48. United States v. Hart, 743 F. App’x 919, 921(11th Cir. July 24, 2018) (ACCA)
49. United States v. Hunter, 732 F. App’x 771, 778 (11th Cir. Apr. 26, 2018)
(Guidelines)
50. United States v. Lockhart, 732 F. App’x 743, 747 (11th Cir. Apr. 24, 2018)
(ACCA)
51. United States v. Dawson, 719 F. App’x 991, 991 (11th Cir. Apr. 13, 2018)
(ACCA)
52. United States v. Gofphin, 719 F. App’x 971 (11th Cir. Apr. 6, 2018) (Guidelines)
53. United States v. Allen, 714 F. App’x 988, 990 (11th Cir. Mar. 9, 2018)
(Guidelines)
54. United States v. Bully, 729 F. App’x 671, 677 (11th Cir. Mar. 2, 2018)
(Guidelines)
55. United States v. Joyner, 882 F.3d 1369, 1377 n. 4 (11th Cir. Feb. 22, 2018)
(ACCA)
56. United States v. Brown, 2018 WL 1474898 at *1 (11th Cir. Feb. 21, 2018)
(ACCA)
57. Burke v. United States, 2018 WL 2181152, at *1 n.1 (11th Cir. Feb. 21, 2018)
(ACCA)
58. United States v. Anderson, 723 F. App’x 833, 836 (11th Cir. Jan. 26, 2018)
(ACCA)
59. United States v. Martin, 719 F. App’x 881, 883 (11th Cir. Dec. 14, 2017) (ACCA)
60. United States v. Watkins, 718 F. App’x 849, 854 (11th Cir. Dec. 12, 2017)
(Guidelines)
61. United States v. Felix, 718 F. App’x 958, 965 (11th Cir. Nov. 8, 2017) (ACCA)
62. United States v. Cilla, 712 F. App’x 880, 884 (11th Cir. Oct. 18, 2017) (ACCA)
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63. United States v. James, 712 F. App’x 838, 840 (11th Cir. Oct. 17. 2017)
(Guidelines)
64. United States v. Ackerman, 709 F. App’x 925, 928 (11th Cir. Sept. 14, 2017)
(ACCA)
65. United States v. Washington, 707 F. App’x 687, 690–91 (11th Cir. Aug. 31,
2017) (ACCA)
66. United States v. Swaby, 697 F. App’x 619 (11th Cir. Aug. 29, 2017) (Guidelines)
67. United States v. Hale, 705 F. App’x 876, 879 (11th Cir. Aug. 23, 2017) (ACCA)
68. United States v. Scott, 703 F. App’x 924 (11th Cir. Aug. 11, 2017) (Guidelines)
69. United States v. Williams, 700 F. App’x 895, 898 (11th Cir. June 23, 2017)
(ACCA)
70. United States v. (Herman) Smith, 696 F. App’x 427, 430 (11th Cir. June 12,
2017) (ACCA)
71. United States v. McKenzie, 696 F. App’x 417, 419 (11th Cir. June 9, 2017)
(ACCA)
72. United States v. Hughes, 688 F. App’x 889, 890 (11th Cir. June 8, 2017) (ACCA
& Guidelines)
73. McDowell v. Warden, FCC Coleman-Medium, 694 Fed. App’x 692, 694 (11th
Cir. May 31, 2017) (ACCA)
74. United States v. Lott, 687 Fed. Appx. 889, 890 (11th Cir. May 8, 2017) (ACCA)
75. Bell v. United States, 688 F. App’x 593, 595 (11th Cir. April 20, 2017) (ACCA)
76. United States v. Pridgeon, 853 F.3d 1192, 1197–98 (11th Cir. Apr. 12, 2017)
(Guidelines)
77. Cray v. United States, 2017 WL 5515840 at *3 (11th Cir. Apr. 12, 2017) (ACCA)
78. United States v. Robinson, 684 F. App’x 901, 902 (11th Cir. Apr. 10, 2017)
(Guidelines)
79. United States v. Turner, 684 F. App’x 816, 822 (11th Cir. Apr. 5, 2017) (ACCA)
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80. United States v. Hart, 684 F. App’x 834, 838 (11th Cir. Apr. 5, 2017) (ACCA)
81. United States v. Kelly, 677 F. App’x 633, 633–34 (11th Cir. Feb. 21, 2017)
(ACCA)
82. United States v. Razz, 679 F. App’x 950, 956 (11th Cir. Feb. 16, 2017) (ACCA)
83. United States v. Cobb, 842 F.3d 1213, 1223 (11th Cir. Nov. 30, 2016) (ACCA)
84. United States v. Pearson, 662 F. App’x 896, 899–900 (11th Cir. Nov. 22, 2016)
(ACCA & Guidelines)
85. United States v. Senecharles, 660 F. App’x. 812, 814 (11th Cir. Aug. 31, 2016)
(ACCA)
86. United States v. Phillips, 834 F.3d 1176, 1184 (11th Cir. Aug. 23, 2016) (ACCA)
87. United States v. Russell, 657 F. App’x 894 (11th Cir. Aug. 2, 2016) (Guidelines)
88. United States v. Telusme, 655 F. App’x 743, 745–46 (11th Cir. July 8, 2016)
(ACCA)
89. United States v. Johnson, 663 F. App’x 738, 740 (11th Cir. June 29, 2016
(ACCA)
90. United States v. Hill, 652 F. App’x 835, 836 (11th Cir. June 14, 2016)
(Guidelines)
91. United States v. Young, 651 F. App’x 939, 943 (11th Cir. June 6, 2016) (ACCA)
92. United States v. Riley, 651 F. App’x 886, 888–89 (11th Cir. June 2, 2016)
(Guidelines)
93. Jones v. United States, 650 Fed. Appx. 974, 976–77 (11th Cir. May 31, 2016)
(ACCA & Guidelines)
94. United States v. Holmes, 647 F. App’x 1014 (11th Cir. Apr. 13, 2016)
(Guidelines)
95. United States v. McKinley, 647 F. App’x 957, 966 (11th Cir. Apr. 12, 2016)
(Guidelines)
96. United States v. Perez-Prado, 642 F. App’x 966, 969 (11th Cir. Feb. 11, 2016)
(Guidelines)
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97. United States v. Johnson, 641 F. App’x 875, 876 (11th Cir. Jan. 12, 2016)
(Guidelines)
98. United States v. Humphrey, 624 F. App’x 724 (11th Cir. Dec. 3, 2015)
(Guidelines)
99. United States v. Blanc, 631 F. App’x 860 (11th Cir. Nov. 30, 2015) (Guidelines)
100.
United States v. James, 631 F. App’x 803, 807 (11th Cir. Nov. 17, 2015)
(ACCA)
101.
United States v. Lide, 622 F. App’x 884, 885 (11th Cir. Nov. 12, 2015)
(Guidelines)
102.
United States v. Gilmore, 631 F. App’x 711, 713–14 (11th Cir. Nov. 9, 2015)
(Guidelines)
103.
United States v. Warren, 632 F. App’x 973, 975 (11th Cir. Nov. 9, 2015)
(ACCA)
104.
United States v. Murray, 625 F. App’x 955, 959 (11th Cir. Sept. 4, 2015)
(ACCA)
105.
Yawn v. FCC Coleman-Medium Warden, 615 F. App’x 644, 645 (11th Cir.
Aug. 28, 2015) (ACCA)
106.
United States v. Tracy, 613 F. App’x 905, 906 (11th Cir. Aug. 17, 2015)
(Guidelines)
107.
United States v. Darling, 619 F. App’x 877, 880 (11th Cir. July 29, 2015)
(ACCA)
108.
United States v. Chatman, 610 F. App’x 877, 880 (11th Cir. July 24, 2015)
(ACCA)
109.
United States v. Walker, 618 F. App’x 564, 566 (11th Cir. July 13, 2015)
(Guidelines)
110.
United States v. Blue, 604 F. App’x 922, 923 (11th Cir. June 30, 2015)
(Guidelines)
111.
United States v. Patterson, 615 F. App’x 594, 586 (11th Cir. June 26, 2015)
(Guidelines)
44a
USCA11 Case: 19-13893
Date Filed: 11/24/2020
Page: 47 of 47
112.
United States v. (Travis) Smith, 606 F. App’x 561, 562 (11th Cir. June 9,
2015) (Guidelines)
113.
United States v. Jackson, 604 F. App’x 913 (11th Cir. May 22, 2015)
(Guidelines)
114.
United States v. Bullard, 610 F. App’x 898, 900 (11th Cir. May 22, 2015)
(ACCA)
115.
United States v. Joseph, 611 F. App’x 946, 948 (11th Cir. May 12, 2015)
(ACCA)
116.
United States v. Rivero, 619 F. App’x 784, 786 (11th Cir. Apr. 8, 2018)
(Guidelines)
117.
United States v. Williams, 605 F. App’x 833, 837 (11th Cir. Mar. 27, 2015)
(ACCA & Guidelines)
118.
United States v. Lowry, 599 F. App’x 358, 359 (11th Cir. Mar. 27, 2015)
(ACCA)
119.
United States v. Phillips, 598 F. App’x 742, 743 (11th Cir. Mar. 10, 2015)
(ACCA)
120.
United States v. Perez-Prado, 598 F. App’x 739, 740 (11th Cir. Mar. 9, 2015)
(Guidelines)
121.
United States v. Chandler, 603 F. App’x 789, 791 (11th Cir. Feb. 26, 2015)
(Guidelines)
122.
United States v. Moss, 592 F. App’x 914, 916 (11th Cir. Feb. 3, 2015) (ACCA)
45a
APPENDIX C
USCA11 Case: 19-13893
Date Filed: 01/06/2021
Page: 1 of 1
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13893-CC
________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TYRELL DONTE CURRY,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
ON PETITION(S) FOR REHEARING AND PETITION(S) FOR REHEARING EN BANC
BEFORE: JILL PRYOR, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
The Petition for Rehearing En Banc is DENIED, no judge in regular active service on the Court
having requested that the Court be polled on rehearing en banc. (FRAP 35) The Petition for
Rehearing En Banc is also treated as a Petition for Rehearing before the panel and is DENIED.
(FRAP 35, IOP2)
ORD-42
46a
APPENDIX D
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 1 of 28
2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
3
CASE NO. 19-CR-80087-ROSENBERG
1
1
4
UNITED STATES OF AMERICA,
5
Plaintiff,
6
vs.
7
TYRELL DONTE CURRY,
8
9
Defendant.
.
.
.
.
.
.
. West Palm Beach, FL
. September 16, 2019
.
10
11
SENTENCING PROCEEDINGS
BEFORE THE HONORABLE ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
12
13
14
APPEARANCES:
15
FOR THE PLAINTIFF:
ADAM C. McMICHAEL
United States Attorney's Office
500 S. Australian Avenue
Suite 400
West Palm Beach, FL 33401
561-209-1040
FOR THE DEFENDANT:
ROBERT E. ADLER, ESQ.
Federal Public Defenders Office
450 Australian Avenue
Suite 500
West Palm Beach, FL 33401
561-833-6288
Official Court Reporter:
Pauline A. Stipes
Fort Pierce/West Palm Beach
772-467-2337
HON. ROBIN L. ROSENBERG
16
17
18
19
20
21
22
23
24
25
Pauline A. Stipes, Official Federal Reporter
47a
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 2 of 28
1
THE COURT:
Good morning.
We are here in the matter
2
of United States of America versus Tyrell Donte Curry.
3
could have all counsel state their appearance on the record and
4
the appearance of Mr. Curry and the Probation Officer.
5
6
MR. McMICHAEL:
MR. ADLER:
Robert Adler, Assistant Federal Public
Defender, on behalf of Mr. Curry present before the Court.
Good morning.
9
THE COURT:
10
PROBATION OFFICER:
11
I
apologize to the Court and also Mr. Curry.
7
8
Good morning, Adam McMichael.
If we
Good morning, Nicole Garcia for
Probation.
12
THE COURT:
On July 30, 2019, Mr. Curry entered a plea
13
of guilty to Count 1 of the indictment.
14
Curry with possession of a firearm by a convicted felon, in
15
violation of Title 18 United States Code Sections 922(g)(1) and
16
924(e).
Was that done pursuant to a plea agreement or was that
17
18
Count 1 charges Mr.
open?
19
MR. McMICHAEL:
20
THE COURT:
21
MR. McMICHAEL:
22
THE COURT:
It was open.
Just a one-count indictment?
Yes, your Honor.
Okay.
And upon acceptance of Mr. Curry's
23
plea, the Court adjudged him guilty of Count 1 and ordered a
24
Pre-Sentence Investigation Report and deferred sentence until
25
today's date.
Pauline A. Stipes, Official Federal Reporter
48a
2
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 3 of 28
1
The Pre-Sentence Report appears at Docket Entry 19.
2
Did the Government receive and have ample opportunity
3
to review the Pre-Sentence Report?
4
MR. McMICHAEL:
5
THE COURT:
Did the Defense?
6
MR. ADLER:
Yes.
7
THE COURT:
Any reason why the Court should not
8
pronounce sentence in this case today?
No, your Honor.
9
MR. ADLER:
10
MR. McMICHAEL:
11
THE COURT:
12
Yes.
No, your Honor.
Mr. Curry, I want you to know that you
have a right to make a statement before I pronounce sentence.
13
Do you understand that?
14
THE DEFENDANT:
15
THE COURT:
16
Yes, ma'am.
Do you know whether you want to make a
statement before I pronounce sentence?
Yes, ma'am.
17
THE DEFENDANT:
18
THE COURT:
19
we will go over the filings.
There was an objection filed at
20
Docket Entry 18 by Defense.
I will note there is no response
21
from the Government.
22
response to objections.
23
MR. McMICHAEL:
24
should have replied and I did not.
25
THE COURT:
I do note before we review the Guidelines,
The pretrial report does require a
I'm sorry, that is my mistake.
I
Any time we have a sentencing, we have an
Pauline A. Stipes, Official Federal Reporter
49a
3
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 4 of 28
1
order that goes out with deadlines to file motions and I like
2
to know the parties' objections if I can prior to sentencing,
3
and it is fair for the other side to know the objection.
I will allow the Defense to make the motion, and I do
4
5
understand, as cited in the objection, there is binding case
6
law, but I think it is important to get a response on the
7
record to any objection.
8
MR. McMICHAEL:
9
THE COURT:
Thank you.
I apologize.
With that, I will turn it over first to
10
Defense with respect to your objection to the Pre-Sentence
11
Report.
12
MR. ADLER:
Your Honor, first, one factual issue that
13
I set forth in my objections has been resolved, unfortunately,
14
in the sense that what I thought might have been an issue in
15
regard to Mr. Curry's conviction in State Court case number
16
2011-CF-106, the docket sheet only reflected an Information for
17
simple possession, a third degree felony.
18
When I investigated the matter more thoroughly, I
19
found that the state had in fact, prior to Mr. Curry's plea,
20
filed an amended Information which did charge him with
21
possession with intent to sell, and for some reason that wasn't
22
docketed as such in the State Court file.
23
That issue has been resolved.
24
What I would like to do, Judge, the Government has no
25
objection to my introducing actual copies of the three
Pauline A. Stipes, Official Federal Reporter
50a
4
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 5 of 28
1
judgments that are the State drug convictions that are
2
predicate offenses for the Armed Career Criminal enhancement,
3
and I am doing this to make clear it was under Chapter 893 of
4
the Florida Statutes.
5
6
THE COURT:
So, you want to admit those as exhibits as
part of the sentencing?
Correct, Exhibits 1, 2, and 3, the three
7
MR. ADLER:
8
predicate judgments.
9
THE COURT:
10
MR. McMICHAEL:
11
THE COURT:
12
And the Government has no objection?
No, your Honor.
Exhibits 1, 2, and 3 are admitted without
objection.
13
MR. ADLER:
Judge, there is nothing else for me to say
14
other than, as I noted in my objection, this issue concerning
15
lack of mens rea in Chapter 893 convictions is a matter the
16
Eleventh Circuit has addressed and so there is binding
17
precedent against the Defense position, but the position has
18
been accepted for review in the Shular case, S-H-U-L-A-R, in
19
the Supreme Court, and we will be participating in preparation
20
for the argument for that, and we are hoping at some point
21
we'll prevail and perhaps the Court will have discretion as far
22
as sentencing Mr. Curry.
23
24
25
THE COURT:
What is the procedural posture of that
MR. ADLER:
It has been accepted for review, but they
case?
Pauline A. Stipes, Official Federal Reporter
51a
5
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 6 of 28
1
are going to be doing briefing, and oral argument has not been
2
set.
3
It will be awhile before this gets resolved.
THE COURT:
In the event the outcome is one that is
4
different than the Eleventh Circuit, do you envision that
5
Defendants who were sentenced -- would it be Defendants who
6
were sentenced based on predicate offenses under 893 would be
7
eligible for resentencing?
8
MR. ADLER:
Correct, Judge, and that is after the
9
effective date of 893, which was May 13, 2002.
10
predicate convictions after that date would be subject to
11
challenges, predicate offenses, if they are successful in our
12
case.
13
THE COURT:
So, those
Such that the mandatory minimum would not
14
be applicable and we would be looking at what the Guideline
15
range would have been?
Correct, and we'll present argument for a
16
MR. ADLER:
17
downward departure variance.
18
THE COURT:
Okay.
Am I to assume that under U.S.
19
versus Smith, 775 F.3d 1262, 11th Circuit, 2014, that Mr.
20
Curry does qualify under the Armed Career Criminal Act and the
21
Court has no discretion in sentencing him other than to the
22
mandatory minimum 15 years?
23
MR. ADLER:
That is correct, your Honor.
24
THE COURT:
All right.
25
I know Mr. Curry wanted to say
something, so can we swear -- right, we are just doing the
Pauline A. Stipes, Official Federal Reporter
52a
6
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 7 of 28
1
objections now.
2
objections only.
3
Let me hear from the Government on the
MR. McMICHAEL:
As the Court and Defense have
4
acknowledged, United States versus Smith is still controlling
5
here in our district, in our circuit.
6
both possession with intent to distribute or possession with
7
intent to sell, as well as sale of controlled substances.
It actually applies to
8
In this case, Defense has preserved their objection,
9
so if the Smith decision should be overturned, as much as the
10
Supreme Court should disagree with the Smith decision, it is
11
open to debate what would occur in Mr. Curry's case.
12
very extreme position, Mr. Curry would be available -- this
13
case would come back for resentencing.
14
he does have three convictions that would qualify as drug
15
transactions under the specific statute being challenged.
On the
At that point in time,
If the statute is found not to provide a sufficient
16
17
basis for Armed Career Criminal, he would be looking at a
18
maximum sentence up to ten years imprisonment and a Guideline
19
range of much, much less, rather than a Guideline range of 180
20
months based upon the application of the Armed Career Criminal
21
Statute.
22
On behalf of the United States, the Court is bound at
23
this time to determine that the Defendant does qualify as an
24
Armed Career Criminal based on at least three convictions of
25
serious drug offenses.
Those convictions are the same Exhibits
Pauline A. Stipes, Official Federal Reporter
53a
7
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 8 of 28
1
1, 2, and 3 presented to the Court, and I would ask the Court
2
to overrule the objection posed by Defense counsel.
THE COURT:
Okay.
5
MR. ADLER:
No, your Honor.
6
THE COURT:
Okay.
3
4
Anything further in reply from the
Defense?
The Court does overrule the
7
objection for the reasons that have been articulated on the
8
record and even acknowledged in the Defendant's objections,
9
that is that United States versus Smith, 775 F.3d 1262,
10
Eleventh Circuit is binding on this Court in that the three
11
convictions accepted into evidence as Exhibits 1, 2, and 3.
12
With that, let me review the Guidelines to ensure that
13
everybody agrees on the Guidelines even though, in light of the
14
Court's overruling of the objections that necessarily means, as
15
Defense has acknowledged, that Mr. Curry qualifies under the
16
Armed Career Criminal Act and the Court has no discretion but
17
to sentence him to a mandatory minimum of 15 years.
The Guideline calculations reflect a total offense
18
19
level 30 and criminal history category VI, and under the
20
mandatory 180 month Guideline or statutory mandatory sentence,
21
it would be 180 months, with ineligibility for probation,
22
supervised release of two to five years, 30,000 to $250,000
23
fine, restitution not applicable, and a special assessment of
24
$100.
25
Does the Government agree with that?
Pauline A. Stipes, Official Federal Reporter
54a
8
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 9 of 28
Yes.
1
MR. McMICHAEL:
2
THE COURT:
Does Defense agree with that?
3
MR. ADLER:
Yes, in light of the rulings.
4
THE COURT:
If the 180 months is not applicable, an
5
offense level of 30, criminal history category VI, puts Mr.
6
Curry at 168 to 210 months, so his lowest would be 168, but you
7
would arguably make a motion for a downward variance.
8
MR. ADLER:
He is a criminal history IV.
9
THE COURT:
Because the enhancement -- you mean if the
10
mandatory minimum didn't apply?
11
MR. ADLER:
He is --
12
THE COURT:
I have a criminal history category VI.
13
PROBATION OFFICER:
Based upon the Defendant's
14
designation of Armed Career Criminal, the Guidelines tell us
15
those are all placed in category VI.
16
17
THE COURT:
If he is not an Armed Career Criminal it
would be -IV.
18
PROBATION OFFICER:
19
THE COURT:
30 and IV, 135 to 168.
20
MR. ADLER:
Correct.
21
PROBATION OFFICER:
Your Honor, this Defendant's
22
offense level was also raised because of the Armed Career
23
Criminal designation.
24
25
THE COURT:
I am curious, do we know what he would
have been?
Pauline A. Stipes, Official Federal Reporter
55a
9
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 10 of 28 10
1
2
PROBATION OFFICER:
Based on the calculations in the
PSI, a total offense level 27, criminal history IV.
That is 100 to 125 months.
3
THE COURT:
4
PROBATION OFFICER:
5
THE COURT:
6
Now that the Court has ruled on the objections and
7
both parties agree, in light of the Court's ruling, although
8
Defense certainly preserved its objection, the Guidelines are
9
as they are outlined, I will turn it over to the Defense for
10
any argument you would like to make, any evidence you would
11
like to present, and also to allow Mr. Curry to make any
12
statement that he would like to make.
13
MR. ADLER:
Okay.
Yes, your Honor.
All right.
Your Honor, before Mr. Curry speaks, I
14
would note, though somewhat futile, this is a young man, just
15
turned 28, he has had a difficult life.
16
that make him an Armed Career Criminal are very small amounts
17
of crack cocaine.
18
19
THE COURT:
I saw that $20.
The prior convictions
That is not the amount,
what was paid for it.
20
MR. ADLER:
This offense really stemmed from him
21
losing his father.
22
job, had basically perhaps a career there when his father
23
passed away.
24
and he fell into a terrible depression, and he was using drugs,
25
and this offense was one of fortuity in that he was going
He was doing well in Ocala, he had a good
When he came down here with his mom, she dies,
Pauline A. Stipes, Official Federal Reporter
56a
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1
around looking for things in cars and the car, he opens the
2
door and there is the gun.
3
gun in the car, he wouldn't be here today.
4
truth of this case.
That is the sad
So, 15 years is certainly more than enough punishment
5
6
But for that gun owner leaving that
in light of the facts and his 3553(a) factors.
7
THE COURT:
Thank you.
Mr. Curry, can we swear you in
8
so you can make your statement?
9
THE DEFENDANT:
10
THE COURT:
11
(Thereupon, the Defendant was duly sworn.)
12
THE COURT:
13
Yes.
Okay.
Okay, Mr. Curry, what would you like to
say?
14
THE DEFENDANT:
First of all, I would like to say I
15
apologize to the Courts and to my family for what I did, so --
16
my parents are gone and the loss -- (Defendant crying) -- I did
17
everything I could for my mom and one day I get a phone call
18
and she just gone.
19
drugs.
So, what do I have?
20
THE COURT:
21
every word you are saying.
22
23
24
25
Started back doing
I'm sorry, I want to make sure we get down
THE DEFENDANT:
It got me back to where I am now, back
in jail.
I accept the fact that I did wrong, you know, you just
have to learn from your mistakes.
Pauline A. Stipes, Official Federal Reporter
57a
Case 9:19-cr-80087-RLR Document 37 Entered on FLSD Docket 12/04/2019 Page 12 of 28 12
Right.
1
THE COURT:
2
THE DEFENDANT:
3
my mistakes and better myself.
4
THE COURT:
5
Anything from the Government?
6
MR. McMICHAEL:
The time I get, I hope to learn from
I apologize to you, your Honor.
Thank you, Mr. Curry.
Your Honor, the United States is
7
seeking a sentence at 180 months, understanding that it is a
8
significant sentence.
9
history, in light of the fact he has prior drug sales and drug
10
transactions, small amounts of drugs, but looking at the
11
Defendant's criminal history, he was continuing as a drug
12
dealer, an individual who ran from the police, fled from the
13
police on multiple occasions, and battery on a law enforcement
14
officer as close as 2017.
15
In light of the Defendant's criminal
In this case, he did burglarize a vehicle, he took the
16
firearm from that vehicle.
17
possession within a short amount of time, inside of his
18
vehicle, his own car he was living in at the time.
19
That firearm was found in his
Based on the totality of the circumstances, looking at
20
his status of Armed Career Criminal and the 3553 factors, and
21
acknowledging that the Defendant accepted responsibility, a
22
sentence of 180 months meets the 3553 factors and no sentence
23
higher than 180 months is necessary.
Thank you.
24
THE COURT:
25
Okay, anything further from the Defense?
Pauline A. Stipes, Official Federal Reporter
58a
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1
MR. ADLER:
No, your Honor.
2
THE COURT:
Okay.
3
MR. ADLER:
Yes, your Honor.
4
THE COURT:
Government as well?
5
MR. ADLER:
Yes, your Honor.
6
THE COURT:
Okay.
Defense has been heard in full?
All right.
Well, Mr. Curry, the
7
Court has considered the statements of all of the parties and
8
the Pre-Sentence Report which contains the Sentencing
9
Guidelines and the statutory factors set forth in 18 United
10
States Code Section 3553(a).
The Court makes a finding that you are not able to pay
11
12
a fine.
13
The 3553(a) factors do require the Court to impose a
14
sentence sufficient but not greater than necessary to comply
15
with the purpose set forth in paragraph two of the statute, and
16
in determining a particular sentence to be imposed the Court
17
considers the nature and circumstances of the offense and
18
history and characteristics of the Defendant, the need for
19
the sentence to reflect the seriousness of the offense, to
20
promote respect for the law, and to provide just punishment for
21
the offense, the need to afford adequate deterrence to criminal
22
conduct, to protect the public from further crimes of the
23
Defendant, and provide the Defendant with needed educational or
24
vocational training, medical care, and correctional treatment
25
in the most effective manner.
Pauline A. Stipes, Official Federal Reporter
59a
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1
The Court does note from your Pre-Sentence
2
Investigation Report, Mr. Curry, that, you know, you do have a
3
history of criminal activity that goes back to, you know, your
4
age of 18, and I know in the report it also says you have been
5
taking drugs since -- marijuana since you were 13 and admitted
6
to using it all day, every day, and at 19 you began using Xanax
7
recreationally, and then at 27, you used Molly, MDA.
8
these are very serious drugs and I'm sure impaired your ability
9
to think clearly and maybe do the right thing when you might
10
otherwise have thought differently if you weren't influenced by
11
your drugs.
Clearly,
I do note that when you went to live with your
12
13
father -- let's see.
At the age of 24, you moved there and
14
then it looks like you enjoyed your time there and you were
15
working with him.
He was a horse breeder; is that correct?
16
THE DEFENDANT:
17
THE COURT:
Yes.
It sounds like you were doing very well
18
and, unfortunately, had the tragic experience of finding your
19
father having passed away, so you moved back to West Palm, and
20
not too long after you moved back, you found that your mother
21
had passed away.
22
circumstances to deal with, you know, in the past several
23
years.
24
25
So, you clearly have had very, very difficult
And the Court also does note that, as Mr. Adler, your
attorney, pointed out when I was looking at your criminal
Pauline A. Stipes, Official Federal Reporter
60a
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1
history, it certainly is not to be underestimated, it is
2
serious, and you need to take responsibility for it, and it
3
sounds like you have, and you recognize you want to do better.
4
And I think in your words you said you want to learn from your
5
mistakes, and that is all you can do.
6
and are you paying a high price for these mistakes because you
7
fall into that category of what we have been talking about, the
8
Armed Career Criminal.
People make mistakes,
9
I know your attorney has spoken to you about that and
10
the law as it exists today as it affects this Court is that I
11
have no discretion and I must sentence you to no less than 180
12
months, and I know that that is a long sentence.
13
for anybody, long for somebody who is only 28 years old, it is
14
long given that you have not really served that kind of time
15
before.
16
year periods of time.
It is long
You served time, but I think it was more one year, two
And I did note that in the predicate offenses for the
17
18
sale of the drugs that the quantity was small and the amount
19
being offered to you was $20, for example, .1 grams back in
20
2012.
21
place within the vicinity of schools, and that has its own
22
dangers as well.
23
shouldn't be exposed to, as I am sure you can appreciate, the
24
sale of drugs.
25
not want other young adults to follow in this path and to be
I do note, however, that the drug sales were taking
We have young kids going to school and they
Given your experience, I would think you would
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1
2
exposed to drugs.
So, in any event, the three offenses of selling or
3
possessing with intent to sell do put you in a mandatory Armed
4
Career Criminal category of 180 months, which is the sentence
5
that I must pronounce.
6
It is a high sentence, and I can tell you from
7
experience lately, you know, sometimes the new laws are passed
8
or the Supreme Court makes rulings and it changes what the
9
sentence is, so I have had Defendants now back in court who
10
have been spending quite a bit of time in jail, but under a new
11
law that came out, the First Step Act, they are eligible to be
12
resentenced, have their sentence reduced.
13
benefit of them coming back to court and telling me what they
14
have been doing in the ten, 15 years in jail, and it is
15
remarkable how much positive work they have done in terms of
16
bettering themselves, or as you say, wanting to do better and
17
learn from your mistakes.
18
I have had the
They have taken classes and courses, the list goes on
19
and on of the educational programs they have taken.
That goes
20
to say you can do better, and while I am sure it is preferable
21
not to do it while incarcerated, there are opportunities even
22
while incarcerated to get the treatment for any drug problems
23
that remain and learn skills and better yourself, and stay out
24
of trouble.
25
had no real disciplinary record while they have been there
I noticed with these particular Defendants they
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1
despite being there for many, many years.
2
So, how you do in prison will matter most importantly
3
for you, particularly how you develop as a person because you
4
are there for so long.
5
change in the law and you will be back before me or another
6
judge, and another judge will read my transcript and what I
7
said to you.
8
9
You never know when there will be a
The Court finds the sentence is high and has no
discretion.
10
The Court notes the Guideline range is much lower, and
11
notes that your attorney would have arguments to make why even
12
there should be a variance from that given some of the
13
discussion we have had here today, the fact that you lost both
14
parents, it is difficult, you have been on your own, the fact
15
that the prior offenses did involve relatively small
16
quantities.
17
your whole criminal history in total, but maybe some day
18
another judge will have an opportunity to review the record if
19
the law has changed.
It is not to take away from the seriousness of
20
So, this is a long way of saying don't give up hope
21
and keep working to improve yourself and address some of the
22
issues that you believe have brought you to this position here
23
today being sentenced to a very high sentence.
24
So, with that being said, with the Court having
25
considered everything, it is the judgment of the Court that the
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1
Defendant, Tyrell Donte Curry, is committed to the Bureau of
2
Prisons for 180 months as to Count 1.
3
Upon release from imprisonment, he shall be placed on
4
supervised release for a term of five years.
Within 72 hours
5
of release, he shall report in person to the Probation Office
6
in the district where released.
7
he shall comply with the mandatory conditions of supervised
8
release, including not committing any crimes, being prohibited
9
from possessing a firearm or other dangerous device, not
10
unlawfully possessing a controlled substance and cooperating in
11
the collection of DNA.
While on supervised release,
12
Mr. Curry, you shall comply with the following special
13
conditions, and the special conditions include you participate
14
in an approved treatment program for drug and/or alcohol abuse
15
and abide by all of the supplemental conditions of treatment.
16
Participation may include inpatient and outpatient treatment.
17
You shall contribute to the cost of services rendered based on
18
ability to pay or availability of third-party payment.
19
You shall submit to a search of your person or
20
property conducted in a reasonable manner and at a reasonable
21
time by the Probation Officer.
22
If you have any unpaid amount of restitution, fines,
23
or special assessment you shall advise the probation officer of
24
any material change in your economic circumstances that might
25
affect your ability to pay.
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1
2
3
4
5
It is further ordered that you pay immediately a
special assessment of $100.
Total sentence is 180 months imprisonment, five years
supervised release and a $100 special assessment.
Now that the sentence has been imposed, does the
6
Defendant object to the sentence or the manner in which it was
7
pronounced?
8
MR. ADLER:
No additional objections.
9
THE COURT:
Does the Government?
10
MR. McMICHAEL:
11
THE COURT:
No, your Honor.
Mr. Curry, you have the right to appeal
12
the sentence imposed.
Any appeal must be filled within 14 days
13
after entry of the judgment.
14
cost of appeal, you may appeal in forma pauperis.
15
Anything further?
16
MR. McMICHAEL:
17
MR. ADLER:
18
to Coleman, Florida.
19
THE COURT:
20
MR. McMICHAEL:
21
THE COURT:
22
23
24
25
If you are unable to pay for the
No, your Honor.
Your Honor, we would ask for a designation
Any objection?
No, your Honor.
The Court will include a recommendation
that the Defendant be placed in Coleman.
MR. ADLER:
He wants to receive the maximum drug
treatment and counseling while incarcerated.
I explained to him I did not believe he would qualify
Pauline A. Stipes, Official Federal Reporter
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1
for the RDAP program, but we ask the Court to include that you
2
recommend he does receive the most comprehensive drug treatment
3
that he would qualify for while incarcerated because perhaps
4
the RDAP qualifications will change at some future date.
5
THE COURT:
Okay.
The Court will do that based
6
certainly on what it has read in the PSI, understanding that
7
Mr. Curry has had a long-standing, going back to the age of 13,
8
problem with using drugs.
9
So I think, Mr. Curry, you would benefit greatly from
10
drug treatment, so the Court will recommend the RDAP program,
11
although, as Mr. Adler says, it may be you are ineligible for
12
it now.
13
other drug treatment programs.
14
the drug treatment programs, and the Court will recommend it.
15
You will get as much out of it as you put into it, as well as
16
the other programs.
17
effort you put into improving yourself, the more you will get
18
out of it.
Maybe some day you will be eligible for it.
There are
You should take advantage of
The more effort you put into it, the more
19
You know, I just hope you will be able to benefit from
20
the programs that you take advantage of, so I do wish you well,
21
Mr. Curry, and I will make that recommendation.
22
Anything further?
23
MR. ADLER:
No, your Honor.
24
THE COURT:
Thank you.
25
Thank you.
Good luck, Mr. Curry.
(Thereupon, the hearing was concluded.)
Pauline A. Stipes, Official Federal Reporter
66a
APPENDIX E
Case 9:19-cr-80087-RLR Document 24 Entered on FLSD Docket 09/19/2019 Page 1 of 6
67a
Case 9:19-cr-80087-RLR Document 24 Entered on FLSD Docket 09/19/2019 Page 2 of 6
68a
Case 9:19-cr-80087-RLR Document 24 Entered on FLSD Docket 09/19/2019 Page 3 of 6
69a
Case 9:19-cr-80087-RLR Document 24 Entered on FLSD Docket 09/19/2019 Page 4 of 6
70a
Case 9:19-cr-80087-RLR Document 24 Entered on FLSD Docket 09/19/2019 Page 5 of 6
71a
APPENDIX F
APPENDIX F
Eleventh Circuit Decisions Applying Smith to Reject a Challenge to an
Enhanced Sentence Based on a Prior Conviction Under Fla. Stat. § 893.13
1. United States v. Roper, __ F. App’x __, 2021 WL 236578, at *3 (11th Cir. Jan.
25, 2021) (Guidelines)
2. United States v. Wiggins, __ F. App’x __, 2021 WL 118502, at *1–2 (11th Cir.
Jan. 13, 2021) (Guidelines)
3. United States v. Smith, 983 F.3d 1213, 1222–23 (11th Cir. Dec. 21, 2020)
(ACCA)
4. United States v. Brown, 831 F. App’x 488, 489 (11th Cir. Dec. 17, 2020)
(Guidelines)
5. United States v. Collins, __ F. App’x __, 2020 WL 7392900, at *1 (11th Cir. Dec.
17, 2020) (Guidelines)
6. United States v. Clayton, 831 F. App’x 486, 487 (11th Cir. Dec. 16, 2020)
(Guidelines)
7. United States v. Caple, 830 F. App’x 632, 633 (11th Cir. Dec. 4, 2020)
(Guidelines)
8. United States v. Curry, 833 F. App’x 328 (11th Nov. 4, 2020) (ACCA)
9. United States v. Davis, 828 F. App’x 698, 699 (11th Cir. Oct. 30, 2020) (ACCA)
10. United States v. Cius, 831 F. App’x 465, 467 (11th Cir. Oct. 22, 2020)
(Guidelines)
11. United States v. Billings, 829 F. App’x 461, 463 (11th Cir. Oct. 2, 2020)
(Guidelines)
12. United States v. White, 828 Fed.Appx. 557, 559 (11th Cir. Sept. 21, 2020)
(ACCA)
13. United States v. Samuel, 826 F. App’x 806 (11th Cir. Sept. 8, 2020) (Guidelines)
14. United States v. Hunter, 823 F. App’x 824 (11th Cir. Aug. 14, 2020) (ACCA &
Guidelines)
72a
15. Broderick v. United States, 2020 WL 6280808, at *1 (11th Cir. Aug. 13, 2020)
(Guidelines)
16. United States v. Colston, 824 F. App’x 659, 661 (11th Cir. Aug. 5, 2020)
(Guidelines)
17. United States v. Kelly, 813 F. App’x 466, 467 (11th Cir. July 23, 2020)
(Guidelines)
18. United States v. Simmons, 820 F. App’x 923, 926 (11th Cir. July 15, 2020)
(ACCA)
19. United States v. Jones, 814 F. App’x 553 (11th Cir. July 6, 2020) (Guidelines)
20. United States v. Hollie, 817 F. App’x 880, 883 n.3 (11th Cir. June 24, 2020)
(ACCA)
21. United States v. McClures, 817 F. App’x 814, 817 (11th Cir. June 11, 2020)
(ACCA)
22. United States v. Campbell, 816 F. App’x 384 (11th Cir. June 4, 2020)
(Guidelines)
23. United States v. Culp, 808 F. App’x 1019 (11th Cir. June 2, 2020) (ACCA)
24. United States v. Miller, 806 F. App’x 963 (11th Cir. May 21, 2020) (Guidelines)
25. United States v. Moore, 814 F. App’x 465, 468 (11th Cir. May 13, 2020) (ACCA)
26. United States v. Givins, 806 F. App’x 929 (11th Cir. May 5, 2020) (Guidelines)
27. United States v. Owens, 808 F. App’x 917, 921 (11th Cir. Apr. 7, 2020) (ACCA)
28. United States v. Ross, 807 F. App’x 984, 989–90 (11th Cir. Mar. 7, 2020) (ACCA)
Post-Shular
Pre-Shular
29. United States v. Alexander, 792 F. App’x 763, 764 (11th Cir. Feb. 6, 2020)
(Guidelines)
30. Sereme v. United States, 2020 WL 917254, at *2 (11th Cir. Jan. 10, 2020)
(Guidelines)
73a
31. Gray v. United States, 796 F. App’x 610, 613–14 (11th Cir. Dec. 5, 2019) (ACCA)
32. United States v. Bishop, 940 F.3d 1242, 1253–54 (11th Cir. Oct. 11, 2019)
(Guidelines)
33. United States v. Anderson, 777 F. App’x 482, 483 (11th Cir. Sept. 19, 2019)
(ACCA)
34. United States v. Golden, 786 F. App’x 164, 166 (11th Cir. Aug. 26, 2019) (ACCA)
35. United States v. Anderson, 774 F. App’x 608, 609 (11th Cir. Aug. 2, 2019))
(ACCA)
36. Tribue v. United States, 929 F.3d 1326, 1331 (11th Cir. July 11, 2019) (ACCA)
37. United States v. Hayes, 779 F. App’x 574, 577–78 (11th Cir. June 12, 2019)
(ACCA)
38. United State v. Madrigal, 770 F. App’x 553 (11th Cir. May 14, 2019)
(Guidelines)
39. United States v. Bennett, 770 F. App’x 547 (11th Cir. May 10, 2019) (ACCA)
40. United States v. Smith, 770 F. App’x 955, 957 (11th Cir. Apr. 30, 2019)
(Guidelines)
41. Muhammad v. United States, 768 F. App’x 897, 900 n.3 (11th Cir. Apr. 9, 2019)
(ACCA)
42. United States v. Howard, 767 F. App’x 779, 784–85 (11th Cir. Apr. 2, 2019)
(Guidelines)
43. United States v. Chambliss, 762 F. App’x 751, 758 (11th Cir. Feb. 27, 2019)
(ACCA)
44. Griffin v. United States, 2019 WL 2744723, at *2 (11th Cir. Feb. 19, 2019)
(ACCA & Guidelines)
45. United States v. Jimerson, 749 F. App’x 950 (11th Cir. Jan 24, 2019)
(Guidelines)
46. United States v. Wilson, 754 F. App’x 930, 932 (11th Cir. Dec. 17, 2018) (ACCA)
74a
47. United States v. Burton, 757 F. App’x 883, 884 n.1 (11th Cir. Dec. 11, 2018)
(Guidelines)
48. United States v. Peraza, 754 F. App’x 908, 909–10 (11th Cir. Nov. 9, 2018)
(Guidelines)
49. United States v. Reed, 752 F. App’x 851, 856–57 (11th Cir. Oct. 19, 2018)
(ACCA)
50. Broomfield v. United States, 2018 WL 6504083 at *2 (11th Cir. Oct. 18, 2018)
(ACCA)
51. United States v. Brown, 750 F. App’x 892, 896 n.4 (11th Cir. Oct. 1, 2018)
(ACCA)
52. United States v. ‘Hunter, 749 F. App’x 811, 813 (11th Cir. Sept. 12, 2018)
(ACCA)
53. United States v. Shular, 736 F. App’x 876, 877 (11th Cir. Sept. 5, 2018) (ACCA)
54. United States v. Patrick, 747 F. App’x 797, 799 (11th Cir. Aug. 31, 2018)
(ACCA)
55. United States v. Hart, 743 F. App’x 919, 921(11th Cir. July 24, 2018) (ACCA)
56. United States v. Hunter, 732 F. App’x 771, 778 (11th Cir. Apr. 26, 2018)
(Guidelines)
57. United States v. Lockhart, 732 F. App’x 743, 747 (11th Cir. Apr. 24, 2018)
(ACCA)
58. United States v. Dawson, 719 F. App’x 991, 991 (11th Cir. Apr. 13, 2018)
(ACCA)
59. United States v. Gofphin, 719 F. App’x 971 (11th Cir. Apr. 6, 2018) (Guidelines)
60. United States v. Allen, 714 F. App’x 988, 990 (11th Cir. Mar. 9, 2018)
(Guidelines)
61. United States v. Bully, 729 F. App’x 671, 677 (11th Cir. Mar. 2, 2018)
(Guidelines)
62. United States v. Joyner, 882 F.3d 1369, 1377 n. 4 (11th Cir. Feb. 22, 2018)
(ACCA)
75a
63. United States v. Brown, 2018 WL 1474898 at *1 (11th Cir. Feb. 21, 2018)
(ACCA)
64. Burke v. United States, 2018 WL 2181152, at *1 n.1 (11th Cir. Feb. 21, 2018)
(ACCA)
65. United States v. Anderson, 723 F. App’x 833, 836 (11th Cir. Jan. 26, 2018)
(ACCA)
66. United States v. Martin, 719 F. App’x 881, 883 (11th Cir. Dec. 14, 2017) (ACCA)
67. United States v. Watkins, 718 F. App’x 849, 854 (11th Cir. Dec. 12, 2017)
(Guidelines)
68. United States v. Felix, 718 F. App’x 958, 965 (11th Cir. Nov. 8, 2017) (ACCA)
69. United States v. Cilla, 712 F. App’x 880, 884 (11th Cir. Oct. 18, 2017) (ACCA)
70. United States v. James, 712 F. App’x 838, 840 (11th Cir. Oct. 17. 2017)
(Guidelines)
71. United States v. Ackerman, 709 F. App’x 925, 928 (11th Cir. Sept. 14, 2017)
(ACCA)
72. United States v. Washington, 707 F. App’x 687, 690–91 (11th Cir. Aug. 31,
2017) (ACCA)
73. United States v. Swaby, 697 F. App’x 619 (11th Cir. Aug. 29, 2017) (Guidelines)
74. United States v. Hale, 705 F. App’x 876, 879 (11th Cir. Aug. 23, 2017) (ACCA)
75. United States v. Scott, 703 F. App’x 924 (11th Cir. Aug. 11, 2017) (Guidelines)
76. United States v. Williams, 700 F. App’x 895, 898 (11th Cir. June 23, 2017)
(ACCA)
77. United States v. (Herman) Smith, 696 F. App’x 427, 430 (11th Cir. June 12,
2017) (ACCA)
78. United States v. McKenzie, 696 F. App’x 417, 419 (11th Cir. June 9, 2017)
(ACCA)
76a
79. United States v. Hughes, 688 F. App’x 889, 890 (11th Cir. June 8, 2017) (ACCA
& Guidelines)
80. McDowell v. Warden, FCC Coleman-Medium, 694 Fed. App’x 692, 694 (11th
Cir. May 31, 2017) (ACCA)
81. United States v. Lott, 687 Fed. Appx. 889, 890 (11th Cir. May 8, 2017) (ACCA)
82. Bell v. United States, 688 F. App’x 593, 595 (11th Cir. April 20, 2017) (ACCA)
83. United States v. Pridgeon, 853 F.3d 1192, 1197–98 (11th Cir. Apr. 12, 2017)
(Guidelines)
84. Cray v. United States, 2017 WL 5515840 at *3 (11th Cir. Apr. 12, 2017) (ACCA)
85. United States v. Robinson, 684 F. App’x 901, 902 (11th Cir. Apr. 10, 2017)
(Guidelines)
86. United States v. Turner, 684 F. App’x 816, 822 (11th Cir. Apr. 5, 2017) (ACCA)
87. United States v. Hart, 684 F. App’x 834, 838 (11th Cir. Apr. 5, 2017) (ACCA)
88. United States v. Kelly, 677 F. App’x 633, 633–34 (11th Cir. Feb. 21, 2017)
(ACCA)
89. United States v. Razz, 679 F. App’x 950, 956 (11th Cir. Feb. 16, 2017) (ACCA)
90. United States v. Cobb, 842 F.3d 1213, 1223 (11th Cir. Nov. 30, 2016) (ACCA)
91. United States v. Pearson, 662 F. App’x 896, 899–900 (11th Cir. Nov. 22, 2016)
(ACCA & Guidelines)
92. United States v. Senecharles, 660 F. App’x. 812, 814 (11th Cir. Aug. 31, 2016)
(ACCA)
93. United States v. Phillips, 834 F.3d 1176, 1184 (11th Cir. Aug. 23, 2016) (ACCA)
94. United States v. Russell, 657 F. App’x 894 (11th Cir. Aug. 2, 2016) (Guidelines)
95. United States v. Telusme, 655 F. App’x 743, 745–46 (11th Cir. July 8, 2016)
(ACCA)
96. United States v. Johnson, 663 F. App’x 738, 740 (11th Cir. June 29, 2016
(ACCA)
77a
97. United States v. Hill, 652 F. App’x 835, 836 (11th Cir. June 14, 2016)
(Guidelines)
98. United States v. Young, 651 F. App’x 939, 943 (11th Cir. June 6, 2016) (ACCA)
99. United States v. Riley, 651 F. App’x 886, 888–89 (11th Cir. June 2, 2016)
(Guidelines)
100.
Jones v. United States, 650 F. App’x 974, 976–77 (11th Cir. May 31,
2016) (ACCA & Guidelines)
101.
United States v. Holmes, 647 F. App’x 1014 (11th Cir. Apr. 13, 2016)
(Guidelines)
102.
United States v. McKinley, 647 F. App’x 957, 966 (11th Cir. Apr. 12,
2016) (Guidelines)
103.
United States v. Perez-Prado, 642 F. App’x 966, 969 (11th Cir. Feb. 11,
2016) (Guidelines)
104.
United States v. Johnson, 641 F. App’x 875, 876 (11th Cir. Jan. 12, 2016)
(Guidelines)
105.
United States v. Humphrey, 624 F. App’x 724 (11th Cir. Dec. 3, 2015)
(Guidelines)
106.
United States v. Blanc, 631 F. App’x 860 (11th Cir. Nov. 30, 2015)
(Guidelines)
107.
United States v. James, 631 F. App’x 803, 807 (11th Cir. Nov. 17, 2015)
(ACCA)
108.
United States v. Lide, 622 F. App’x 884, 885 (11th Cir. Nov. 12, 2015)
(Guidelines)
109.
United States v. Gilmore, 631 F. App’x 711, 713–14 (11th Cir. Nov. 9, 2015)
(Guidelines)
110.
United States v. Warren, 632 F. App’x 973, 975 (11th Cir. Nov. 9, 2015)
(ACCA)
111.
United States v. Murray, 625 F. App’x 955, 959 (11th Cir. Sept. 4, 2015)
(ACCA)
78a
112.
Yawn v. FCC Coleman-Medium Warden, 615 F. App’x 644, 645 (11th Cir.
Aug. 28, 2015) (ACCA)
113.
United States v. Tracy, 613 F. App’x 905, 906 (11th Cir. Aug. 17, 2015)
(Guidelines)
114.
United States v. Darling, 619 F. App’x 877, 880 (11th Cir. July 29, 2015)
(ACCA)
115.
United States v. Chatman, 610 F. App’x 877, 880 (11th Cir. July 24, 2015)
(ACCA)
116.
United States v. Walker, 618 F. App’x 564, 566 (11th Cir. July 13, 2015)
(Guidelines)
117.
United States v. Blue, 604 F. App’x 922, 923 (11th Cir. June 30, 2015)
(Guidelines)
118.
United States v. Patterson, 615 F. App’x 594, 586 (11th Cir. June 26, 2015)
(Guidelines)
119.
United States v. (Travis) Smith, 606 F. App’x 561, 562 (11th Cir. June 9,
2015) (Guidelines)
120.
United States v. Jackson, 604 F. App’x 913 (11th Cir. May 22, 2015)
(Guidelines)
121.
United States v. Bullard, 610 F. App’x 898, 900 (11th Cir. May 22, 2015)
(ACCA)
122.
United States v. Joseph, 611 F. App’x 946, 948 (11th Cir. May 12, 2015)
(ACCA)
123.
United States v. Rivero, 619 F. App’x 784, 786 (11th Cir. Apr. 8, 2018)
(Guidelines)
124.
United States v. Williams, 605 F. App’x 833, 837 (11th Cir. Mar. 27, 2015)
(ACCA & Guidelines)
125.
United States v. Lowry, 599 F. App’x 358, 359 (11th Cir. Mar. 27, 2015)
(ACCA)
126.
United States v. Phillips, 598 F. App’x 742, 743 (11th Cir. Mar. 10, 2015)
(ACCA)
79a
127.
United States v. Perez-Prado, 598 F. App’x 739, 740 (11th Cir. Mar. 9, 2015)
(Guidelines)
128.
United States v. Chandler, 603 F. App’x 789, 791 (11th Cir. Feb. 26, 2015)
(Guidelines)
129.
United States v. Moss, 592 F. App’x 914, 916 (11th Cir. Feb. 3, 2015) (ACCA)
80a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.