USA v. Willie Stephens

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 7, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-14418
Non-Argument Calendar
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D.C. Docket No. 7:10-cr-00007-WLS-TQL-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
WILLIE STEPHENS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 7, 2012)
Before TJOFLAT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Willie Stephens was convicted on a plea of guilty of possession with intent

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to distribute more than 500 grams of cocaine, in violation of 21 U.S.C.
§ 841(a)(1). At sentencing, the district court classified Stephens as a career
offender, pursuant to U.S.S.G. § 4B1.1(a), and sentenced him as such to a prison
term of 188 months because he was over 18 years of age, the instant conviction1
was for a controlled substance offense, and he previously had been convicted of
two controlled substance offenses in the Broward County, Florida Circuit Court;
to-wit, a 1999 conviction for trafficking cocaine and a 2008 conviction for
delivery of cocaine, in violation of Fla. Stat. § 893.13. Stephens now appeals his
sentence, claiming that the district court erred in classifying him as a career
offender. We find no error and affirm.
Stephens argues that the court erred in treating his 2008 offense as predicate
career offender offense because a judge of the U.S. District Court for the Middle
District of Florida and a judge of the Twelfth Judicial Circuit of Florida have
declared § 893.13 unconstitutional, and the Florida Supreme Court has accepted
jurisdiction in the latter case, Florida v. Atkins, No. SC11-1878, 71 So.3d 117,
2011 WL 4925888 (Fla. Oct. 12, 2011). Neither trial court decision is controlling
here; hence, the district court did not err in using the 2008 offense as a predicate
The sentence was at the bottom of the Guidelines sentence range of 188 to 235 months’1
imprisonment.
2

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offense under U.S.S.G. § 4B1.1(a). Stephens argues that the court erred in using2
his 1999 conviction as a predicate offense because he was sentenced as a youthful
offender. The problem with this argument is that his lawyer conceded at
sentencing that the conviction qualified as a predicate career offender offense.
Stephens is bound by that concession. His sentence is, accordingly,
AFFIRMED.
Because Stephens did not present this argument to the district court we review it under2
the plain error standard. There could be no plain error here because no error occurred.
3

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