USA v. Willie Murphy, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12363
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE MURPHY, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:20-cr-00031-AW-GRJ-1
____________________
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2 Opinion of the Court 21-12363
Before WILSON, J ORDAN, and NEWSOM , Circuit Judges.
PER CURIAM:
Willie Murphy, Jr., appeals his 240-month sentence for one
count of possession of a controlled substance with intent to distrib-
ute because he claims the district court plainly erred by sentencing
him as a career offender. Murphy argues, for the first time on ap-
peal, that the district court erred in applying a career offender sen-
tencing enhancement based on past drug convictions that were not
“controlled substance offense[s]” under U.S.S.G. § 4B1.1. He as-
serts that the plain language of U.S.S.G. § 4B1.2(b) requires that an
offense include a mens rea element concerning knowledge of the
illicit nature of the controlled substance for that offense to be
counted as a controlled substance offense under U.S.S.G. § 4B1.2.
We affirm.
I.
In October 2020, Murphy was charged with one count of
possession with intent to distribute a controlled substance in viola-
tion of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 841(b)(1)(C).
Murphy initially pled not guilty.
The government later filed a notice of Murphy’s prior con-
victions for sentence enhancement purposes, highlighting three of
his past convictions that it alleged were prior convictions within
the meaning of 21 U.S.C. § 851: (1) obstructing or opposing an of-
ficer with violence (two counts), under Fla. Stat. § 843.01, in 2015;
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21-12363 Opinion of the Court 3
(2) sale of cannabis within 1,000 feet of a school, under Fla. Stat. §
893.13(1)(c)2, in 2010; and (3) possession of cocaine with intent to
sell or deliver, under Fla. Stat. § 893.13(1)(a), in 2003.
Murphy later agreed to plead guilty, agreeing also to an ac-
companying statement of facts admitting that he had been con-
victed of the offenses highlighted in the government’s notice. Mur-
phy’s PSI initially placed him in the criminal category V but ele-
vated him to category VI due to his status as a career offender.
With a total offense level of 34 and a criminal history category of
VI, the PSI found that Murphy’s guideline imprisonment range was
262 months to 327 months. But it noted that this was subject to a
statutory minimum of 120 months’ imprisonment. Prior to sen-
tencing, Murphy did not object to the PSI.
At sentencing, the court asked Murphy if he desired to object
to the PSI’s guidelines calculations. Murphy said that he did not.
The court then asked if there were any issues with the prior con-
victions, to which Murphy responded, “They are what they are . . .
[t]he law in the Eleventh Circuit is not favorable, specifically the
possession with intent to distribute . . . .” When the court asked
once more if either party wished to object to the PSI or guideline
calculations, both declined. Defense counsel also admitted that he
thought, “under the current state of the law, as applied to the
United States Sentencing Guidelines, [Murphy did] technically
qualify as a career offender.”
Nevertheless, Murphy argued for a downward variance
based on his difficult upbringing, his mental health struggles, and
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4 Opinion of the Court 21-12363
some previous convictions that happened when he was much
younger. The court ultimately varied downward and sentenced
Murphy to 240 months’ imprisonment, followed by 8 years of su-
pervised release. It then asked Murphy for any additional objec-
tions, and he declined, except to the degree of the downward vari-
ance.
Following entry of judgment, Murphy appealed.
II.
We generally review
de novo whether a prior conviction
qualifies as a “controlled substance offense” under the guidelines.
See United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017).
Nevertheless, when a defendant fails to present an issue to the dis-
trict court in the first instances, we will review such a challenge
under plain error.
United States v. Wilson, 788 F.3d 1298, 1310
(11th Cir. 2015).
Plain error occurs where: (1) there is an error; (2) that is
plain; (3) that affects the defendant’s substantial rights; and (4) that
seriously affects the fairness, integrity, or public reputation of judi-
cial proceedings.
United States v. Roosevelt Coats, 8 F.4th 1228,
1235 (11th Cir. 2021). “Such error must be so clearly established
and obvious that it should not have been permitted by the trial
court even absent the defendant’s timely assistance in detecting it.”
United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (per
curiam) (internal quotation marks omitted).
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21-12363 Opinion of the Court 5
III.
Under the guidelines, a defendant is a career offender if:
(1) the defendant was at least 18 years old at the time of the instant
offense of conviction; (2) the instant offense of conviction is a fel-
ony that is either a “crime of violence” or a “controlled substance
offense”; and (3) the defendant has at least two prior convictions of
either a “crime of violence” or a “controlled substance offense.”
U.S.S.G. § 4B1.1(a). A “controlled substance offense” is an offense
under federal or state law, punishable by more than one year of
imprisonment, “that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance . . . or the pos-
session of a controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).
We have held that a conviction for violating the law Murphy
was convicted under, Fla. Stat § 893.13(1), is a “controlled sub-
stance offense” under U.S.S.G. § 4B1.2(b), and that U.S.S.G.
§ 4B1.2(b) does not require that a charged offense include “an ele-
ment of mens rea with respect to the illicit nature of the controlled
substance.”
United States v. Smith, 775 F.3d 1262, 1268 (11th Cir.
2014). We have since affirmed
Smith’s holding several times.
See
United States v. Bishop, 940 F.3d 1242, 1253–54 (11th Cir. 2019);
United States v. Pridgeon, 853 F.3d 1192, 1198 (11th Cir. 2017).
This Court is bound by the language of prior cases when that
language answers questions “actually presented and decided” or
“otherwise necessary to the answers of those presented and de-
cided questions.”
Cave v. Sec’y for Dept. of Corr., 638 F.3d 739,
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746 (11th Cir. 2011). Under the prior panel precedent rule recog-
nized by our court, “a prior panel's holding is binding on all subse-
quent panels unless and until it is overruled or undermined to the
point of abrogation by the Supreme Court or by this court sitting
en banc.”
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008). Moreover, under the invited error doctrine, “a party may
not challenge as error a ruling or other trial proceeding invited by
that party.”
See United States v. Silvestri, 409 F.3d 1311, 1327–28
(11th Cir. 2005).
Here, even assuming Murphy did not invite any error by ad-
mitting, at sentencing, that he was “technically” a career offender,
the district court did not plainly err. Murphy failed to object to his
prior Florida drug convictions at sentencing and the district court
had no reason to notice an “obvious” error.
Hesser, 800 F.3d at
1325.
Smith’s holding established that a conviction under Fla. Stat
§ 893.13(1) was a “controlled substance offense” under U.S.S.G. §
4B1.2(b).
Smith, 775 F.3d at 1268. Murphy raises the same argu-
ment that the appellant raised unsuccessfully in
Smith—that Fla.
Stat. § 893.13 does not qualify as a “controlled substance offense”
because the statute has no mens rea requirement regarding the il-
licit nature of the substance.
Id. at 1266–67. The Supreme Court
has not overruled
Smith or held that U.S.S.G. § 4B1.2(b) requires a
previous offense to include a mens rea requirement concerning the
illicit nature of the controlled substance.
See Shular v. United
States, 140 S. Ct. 779, 784 (2020). Thus, the district court did not
commit an error, much less one that was so “clearly established
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21-12363 Opinion of the Court 7
and obvious that it should not have been permitted by the trial
court even absent the defendant’s timely assistance in detecting it.”
Hesser, 800 F.3d at 1325 (internal quotation marks omitted).
IV.
In conclusion, the district court did not plainly err. Mur-
phy’s two convictions under Fla. Stat. § 893.13 qualified as con-
trolled substance offenses within U.S.S.G. § 4B1.2 under current
Eleventh Circuit and Supreme Court law, and therefore the district
court was correct to apply a career offender enhancement. Accord-
ingly, we affirm.
AFFIRMED.
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