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United States v. White

United States Court of Appeals, Eleventh Circuit

August 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
NAKEY DEMETRUIS WHITE, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:14-cr-00055-AKK-TMP-1

          Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. [*]

         BY THE COURT:

         A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

          MARTIN, Circuit Judge, with whom JILL PRYOR, Circuit Judge, joins, dissenting from the denial of rehearing en banc:

         Nakey Demetruis White received a longer sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), in part because earlier in his life he had been convicted of trafficking cocaine in Alabama. A panel of this Court affirmed Mr. White's longer sentence. United States v. White, 837 F.3d 1225, 1227 (11th Cir. 2016) (per curiam). His earlier trafficking conviction was under an Alabama statute that criminalized the mere possession of 28 grams of cocaine. Nevertheless, the panel that affirmed his federal sentence held that his earlier conviction under this statute categorically "involv[ed] . . . possessing [a controlled substance] with intent to manufacture or distribute" within the meaning of the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii), and therefore qualified as a "serious drug offense" predicate that justified a longer sentence under the ACCA. See id. at 1235. The panel said its holding was required by this Court's earlier decision in United States v. James, 430 F.3d 1150 (11th Cir. 2005), overruled on other grounds by Johnson v. United States, 576 U.S., 135 S.Ct. 2551 (2015). See White, 837 F.3d at 1232-33.

         I view James and its application to Mr. White's case to demonstrate how this circuit has expanded the ACCA's definition of a "serious drug offense" beyond what those words call for. I do not read the term "serious drug offense" to include mere possession offenses like Mr. White's. James pioneered this expansion of the definition of "serious drug offense" in the Eleventh Circuit, but I believe its interpretation of the ACCA's serious drug offense definition is wrong for two reasons. First, it forces federal judges to make empirical determinations that are beyond our institutional competence. And second, it directly contradicts the Supreme Court's interpretation of the ACCA in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990), because it causes federal judges in this circuit to rely on widely varying state labels and policy judgments when they impose ACCA sentences. The result is that the exact same conduct can support ACCA sentences that are more (or possibly less) harsh based solely on the state where the conduct occurred. I asked the members of this Court to rehear the panel opinion in Mr. White's case in order to address the problems created by James. I dissent from the Court's decision not to rehear Mr. White's case, as well as the result that James will continue to stand as the law of our circuit.

         I.

         The ACCA requires no less than a fifteen-year prison sentence for a defendant convicted of violating 18 U.S.C. § 922(g)[1] if he has three or more convictions from earlier in his life, when those convictions are either "violent felon[ies]" or "serious drug offense[s]." 18 U.S.C. § 924(e). Federal courts have devoted much effort in recent years to the question of how to define "violent felon[ies]" when sentencing under the ACCA, but here I will discuss the other term-"serious drug offense." The ACCA defines a "serious drug offense" to include any "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." Id. § 924(e)(2)(A)(ii).

         In deciding whether a defendant's earlier conviction fits the ACCA's definition of a "serious drug offense, " courts have to apply what is known as the "categorical approach." This approach prohibits courts from looking back to the facts of the case that resulted in the earlier conviction. Descamps v. United States, 570 U.S., 133 S.Ct. 2276, 2283 (2013). Instead, Supreme Court precedent requires courts to look only to the elements of the statute under which the defendant was convicted. See Mathis v. United States, 579 U.S., 136 S.Ct. 2243, 2251 (2016). If the "least of the acts criminalized" by the statute does not fall within the ACCA's definition of a serious drug offense, then a conviction under that statute does not categorically qualify as a serious drug offense. Moncrieffe v. Holder, 569 U.S., 133 S.Ct. 1678, 1684 (2013) (quotation omitted and alteration adopted).

         In 2014, Mr. White pled guilty in federal court to one count of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). He got a longer sentence under the ACCA based on three earlier convictions. One of the three was an Alabama conviction for trafficking in cocaine in violation of Ala. Code § 13A-12-231(2). White, 837 F.3d at 1227-28 & n.1. As mentioned, this Alabama statute defines a cocaine trafficking offense as occurring when a person "knowingly sells, manufactures, delivers, or brings into [Alabama], or . . . is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine." Ala. Code § 13A-12-231(2). These words mean that a person can be convicted under § 13A-12-231(2) for the mere possession of an ounce of cocaine. From the government's perspective, it can convict a defendant under this statute without offering any proof that he had an intent to sell, manufacture, deliver, or distribute cocaine.

         Mr. White appealed his federal sentence to this Court, arguing (as he did in the District Court) that he is not eligible for the longer sentence he got under the ACCA. He argues that his conviction for trafficking in cocaine, as defined by Ala. Code § 13A-12-231(2), does not categorically qualify as a "serious drug offense." White, 837 F.3d at 1228, 1232. He says that because § 13A-12-231(2) prohibits the mere possession of 28 grams of cocaine and doesn't require the government to prove any intent to distribute, his conviction under that statute doesn't necessarily "involv[e] manufacturing, distributing, or possessing [a controlled substance] with intent to manufacture or distribute" within the meaning of 18 U.S.C. § 924(e)(2)(A)(ii). White, 837 F.3d at 1228, 1232. Thus, he says his Alabama trafficking conviction cannot be a "serious drug offense." Id.

         Relying on James, the panel rejected Mr. White's argument. Id. at 1232-35. James said that because the ACCA includes the expansive term "involving" in its definition of "serious drug offense, " 18 U.S.C. § 924(e)(2)(A)(ii), the definition is broad enough to include "state offenses that do not have as an element the manufacture, distribution, or possession of drugs with intent to manufacture or distribute." 430 F.3d at 1155. James addressed a Florida trafficking-cocaine-by-possession conviction under Fla. Stat. § 893.135(1)(b), which, like the Alabama statute in Mr. White's case, also criminalized the mere possession of 28 grams of cocaine. The James panel said that a conviction under this Florida statute qualifies as a "serious drug offense" under the ACCA because it "involv[es]" possessing cocaine with intent to distribute. Id. at 1155. More to the point, James said that courts could infer an intent to distribute from (1) the quantity of cocaine a defendant must possess in order to violate the Florida trafficking statute; and (2) the placement of that trafficking statute in Florida's criminal code. Id. at 1154-55. Mr. James's earlier Florida conviction was under a statute which found its home in the highest tier of a three-tiered statutory drug scheme. As a result, it had harsher penalties than both simple possession and possession with intent to distribute. Id.

         Like the Florida statute in James, the statute we examine for Mr. White's case (Ala. Code § 13A-12-231(2)) criminalizes the mere possession of 28 grams of cocaine, and is also the most serious crime in a three-tiered scheme for punishing drug offenses in Alabama.[2] For these reasons, Mr. White's panel said it was bound by James to hold that his cocaine trafficking conviction under ยง 13A-12-231(2) categorically qualifies as a "serious drug offense." The panel so held, even though ...


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