Filed: Feb. 11, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-10717 Date Filed: 02/11/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10717 Non-Argument Calendar _ D.C. Docket No. 1:13-cr-20435-KMW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFRED LEONCE MARCEL VIAUD, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (February 11, 2015) Before JORDAN, JILL PRYOR and BLACK, Circuit Judges. PER CURIAM: Case: 14-10717 Date
Summary: Case: 14-10717 Date Filed: 02/11/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10717 Non-Argument Calendar _ D.C. Docket No. 1:13-cr-20435-KMW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFRED LEONCE MARCEL VIAUD, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (February 11, 2015) Before JORDAN, JILL PRYOR and BLACK, Circuit Judges. PER CURIAM: Case: 14-10717 Date ..
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Case: 14-10717 Date Filed: 02/11/2015 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10717
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20435-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED LEONCE MARCEL VIAUD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 11, 2015)
Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Case: 14-10717 Date Filed: 02/11/2015 Page: 2 of 7
Alfred Viaud appeals his 151-month sentence imposed after he pled guilty to
possession with intent to distribute a controlled substance under 21 U.S.C.
§ 841(a)(1). Viaud was designated a career offender at sentencing, and he
contends on appeal both that the career offender guideline is a non-existent penalty
and that the district court erred by designating two of his predicate offenses as
crimes of violence under the career offender guideline. 1 We address each issue in
turn, and after review, affirm Viaud’s sentence.
I. DISCUSSION
A. Career offender guideline is a non-existent penalty
For the first time on appeal, Viaud contends his career offender
classification is “a non-existent penalty” because it conflicts with the notice
requirement found in 21 U.S.C. § 851(a)(1), is not listed in his statute of
conviction, and violates due process by not requiring notice. This Court reviews
issues not raised before the district court for plain error. United States v. Madden,
733 F.3d 1314, 1319 (11th Cir. 2013).
A defendant qualifies as a career offender under the Sentencing Guidelines if
“(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of conviction is
1
Viaud also asserts the appeal waiver provision in his plea agreement is invalid and
unenforceable because the district court failed to discuss it with him during the Rule 11 plea
colloquy. The Government concedes this issue.
2
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a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). Viaud argues
§ 4B1.1(a) conflicts with 21 U.S.C. § 851(a)(1), which states:
No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court (and serves
a copy of such information on the person or counsel for the person)
stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1).
In Young v. United States, 936 F.2d 533, 535 (11th Cir. 1991), the appellant
argued the government was required to comply with § 851(a)(1)’s notice
requirement before using prior convictions to classify him as a career offender
under the Sentencing Guidelines. We rejected the argument, holding the
government only needed to follow the notice requirements of § 851(a)(1) when it
intended to enhance a defendant’s statutory minimum or maximum penalty. The
government was not required to follow the notice requirements when a defendant
received an enhanced sentence as a career offender under the guidelines, so long as
the enhanced sentence was still within the permissible statutory range.
Id. at 535-
36.
Viaud’s 151-month sentence was well below the applicable 240-month
statutory maximum, see 21 U.S.C. § 841(b)(1)(C), and we are bound to follow
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Young’s precedent, see United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th
Cir. 2008) (stating, under the prior-precedent rule, this Court is bound to follow its
prior binding precedent unless and until it is overruled by this Court sitting en banc
or by the Supreme Court). Contrary to Viaud’s contention otherwise, Young’s
rationale is not undercut by the Sentencing Guidelines now-advisory status. See
United States v. Booker,
543 U.S. 220, 258-59 (2005) (holding the Sentencing
Guidelines are advisory, not mandatory). Moreover, no decision of this Court or
the Supreme Court has held the career offender provision conflicts with §
851(a)(1), is “a non-existent penalty,” or that utilizing the career offender provision
without complying with § 851(a)(1) violates due process. Thus, even assuming,
arguendo, the district court erred in employing § 4B1.1, the error was not plain.
See United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003) (“It is the
law of this circuit that, at least where the explicit language of a statute or rule does
not specifically resolve an issue, there can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving it.”).
B. Predicate offenses
Viaud next contends his sentence was procedurally and substantively
unreasonable2 because he did not have the two predicate felonies necessary to be
2
Viaud makes no other reasonableness arguments, rather than arguing his sentence “was
procedurally and substantively unreasonable” because the prior offenses were not valid
predicates.
4
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considered a career offender. First, he asserts his burglary of a dwelling conviction
was not a crime of violence because there was no evidence that he had the
intention to commit a burglary after entering the premises. Second, he argues his
conviction for fleeing and eluding police lights and sirens does not qualify as a
crime of violence. Where a defendant fails to object to his prior convictions being
considered crimes of violence, 3 we review only for plain error. United States v.
Pantle, 637 F.3d 1172, 1174 (11th Cir. 2011).
Viaud was considered a career offender due to three predicate offenses under
Florida law—(1) a 2009 controlled substance offense, “sale or delivery of cocaine
with intent,” (2) a 2012 guilty plea to “fleeing and eluding police lights and
sirens,” and (3) a 2004 guilty plea to burglary of a dwelling.
Only two valid predicate offenses are necessary to invoke the career
offender guideline, and Viaud does not challenge that the controlled substance
offense qualifies as a predicate offense. See U.S.S.G. § 4B1.1(a). Thus, if one of
the challenged offenses qualifies as crime of violence, the career offender
3
Viaud filed a pro se objection to the applicability of the career offender guideline,
specifically challenging his two predicate crimes of violence, but his counsel withdrew the
objection at sentencing. Viaud’s withdrawal is factually distinguishable from United States v.
Masters, 118 F.3d 1524, 1526 (11th Cir. 1997), where a defendant indicated he wished to
withdraw an objection that his attorney had made and not the other way around, but Viaud may
have waived his objection to the classification of his prior convictions as crimes of violence, see
id. (stating a defendant waives his objection and it will not be considered on appeal if he raises,
then knowingly withdraws, an objection to his sentence). We decline to decide the issue of
whether Viaud knowingly waived the objection because Viaud’s claim fails under the plain error
standard.
5
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designation applies. This Court has held that a conviction under § 316.1935(2),
Florida Statutes, such as Viaud’s fleeing and eluding police conviction, constitutes
a violent felony under the Armed Career Criminal Act’s (ACCA) residual clause.
United States v. Petite, 703 F.3d 1290, 1291 (11th Cir. 2013). We reasoned that
“simple vehicle flight from a flashing patrol car presents a serious potential risk of
physical injury comparable to the ACCA’s enumerated crimes of burglary and
arson.”
Id. at 1301. This same reasoning also applies when determining whether
such a conviction falls under § 4B1.2’s identical residual clause. See United States
v. Alexander,
609 F.3d 1250, 1253 (11th Cir. 2010) (noting the residual clauses in
the ACCA’s “violent felony” definition and the career offender guideline’s “crime
of violence” definition are identical, so we will look to opinions applying the
ACCA in considering whether an offense qualifies as a crime of violence under the
career offender guideline). Accordingly, the district court did not plainly err in
determining that Viaud’s fleeing and eluding conviction was a crime of violence
under the career offender guideline. Since only two valid predicate offenses are
necessary to invoke the career offender guideline, it is unnecessary to analyze
whether the district court erred in classifying his burglary of a dwelling conviction
as a crime of violence.
6
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II. CONCLUSION
Accordingly, Viaud had at least two predicate felonies and the district court
did not err in classifying him as a career offender. See U.S.S.G. § 4B1.1(a). We
affirm his sentence.
AFFIRMED.
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