Filed: Jun. 24, 2020
Latest Update: Jun. 24, 2020
Summary: Case: 18-13060 Date Filed: 06/24/2020 Page: 1 of 14 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-13060 Non-Argument Calendar _ D.C. Docket No. 8:17-cr-00615-EAK-AEP-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus REGINALD HOLLIE, a.k.a. Reginald Bedford, a.k.a. Ronnie Bedford, a.k.a. Joseph Bedford, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (June 24, 2020) Before JILL PRYOR, GRANT an
Summary: Case: 18-13060 Date Filed: 06/24/2020 Page: 1 of 14 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-13060 Non-Argument Calendar _ D.C. Docket No. 8:17-cr-00615-EAK-AEP-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus REGINALD HOLLIE, a.k.a. Reginald Bedford, a.k.a. Ronnie Bedford, a.k.a. Joseph Bedford, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (June 24, 2020) Before JILL PRYOR, GRANT and..
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Case: 18-13060 Date Filed: 06/24/2020 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13060
Non-Argument Calendar
________________________
D.C. Docket No. 8:17-cr-00615-EAK-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD HOLLIE,
a.k.a. Reginald Bedford,
a.k.a. Ronnie Bedford,
a.k.a. Joseph Bedford,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 24, 2020)
Before JILL PRYOR, GRANT and LUCK, Circuit Judges.
PER CURIAM:
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Reginald Hollie appeals his conviction and 235-month sentence, which the
district court imposed after a jury found him guilty of being a felon in possession
of a firearm. After careful review, we affirm.
I. BACKGROUND
A grand jury indicted Hollie for being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e). The indictment alleged that Hollie,
“having been previously convicted in any court of [crimes] punishable by
imprisonment for a term exceeding one year, including” arson, delivery of cocaine
and obstructing an officer, two additional instances of delivery of cocaine, and two
instances of delivery of cannabis, “did knowingly possess, in and affecting
interstate commerce, a firearm . . . [i]n violation of 18 U.S.C. §§ 922(g)(1) and
924(e).” Doc. 1 at 1-2. 1
Hollie pled not guilty and the case proceeded to a jury trial. At trial, the
government presented evidence that law enforcement officers encountered Hollie
in a parking lot, where he was trying to open car doors. As the officers approached
him, Hollie drew a gun from his waistband and placed it beneath a tire. The parties
stipulated that Hollie previously had been convicted of a felony offense and that
his civil rights, including the right to possess a firearm, had not been restored.
1
Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.
2
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As relevant to this appeal, the parties jointly proposed jury instructions,
including the following instruction regarding § 922(g)(1):
The Defendant can be found guilty of this crime only if all the following
facts are proved beyond a reasonable doubt:
(1) the Defendant knowingly possessed a firearm in or affecting
interstate or foreign commerce; and
(2) before possessing the firearm, the Defendant had been convicted
of a felony—a crime punishable by imprisonment for more than
one year.
Doc. 28 at 28. When asked about the instructions during the charge conference,
Hollie did not object, nor did he object when the district court read the instruction
to the jury. The jury found Hollie guilty.
In anticipation of sentencing, the probation office prepared a presentence
investigation report (“PSR”). The PSR assigned Hollie a base offense level of 24
under U.S.S.G. § 2K2.1(a)(2). The PSR applied an enhancement under U.S.S.G.
§ 2K2.1(b)(4)(B) because Hollie possessed a firearm with an obliterated serial
number and an enhancement under U.S.S.G. § 4B1.4 because Hollie’s prior felony
convictions rendered him an armed career criminal under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The PSR listed three ACCA
predicate offenses, all Florida convictions for delivery of cocaine. Hollie delivered
cocaine on February 13, 2001 and pled guilty on March 20, 2001; delivered
cocaine on January 10, 2002 and pled guilty on May 7, 2002; and delivered
cocaine on June 5, 2005 and pled guilty on July 19, 2005. Based on these
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enhancements, Hollie’s total offense level was 33. Hollie’s criminal history, which
included the three delivery-of-cocaine convictions as well as four other convictions
that resulted in sentences over one year, yielded a criminal history category of VI.
This resulted in a guidelines range of 235 to 293 months’ imprisonment. The
ACCA enhancement subjected Hollie to a mandatory minimum sentence of 15
years’ imprisonment and a maximum sentence of life imprisonment. See 18
U.S.C. §§ 922(g)(1), 924(e).
At sentencing, the district court invited the parties to raise objections, and
they offered several minor factual corrections to the PSR that are unrelated to the
issues raised in this appeal. The district court then adopted the PSR’s factual
statements and guideline calculations. The court sentenced Hollie to 235 months’
imprisonment followed by 3 years of supervised release. The district court asked
whether either party had an objection; both sides stated that they had none.
Hollie appealed, challenging his indictment, the court’s jury instructions,
and his ACCA-enhanced sentence—for which he argues the government failed to
prove he previously committed three felonies on distinct occasions. While his
appeal was pending, this Court granted Hollie a stay of further appellate
proceedings pending the Supreme Court’s decision in Rehaif v. United States,
4
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139 S. Ct. 2191 (2019). 2 The decision in Rehaif has issued, the stay has been
lifted, and this case is ripe for review.
II. STANDARDS OF REVIEW
We generally review de novo whether crimes were committed on occasions
different from one another within the meaning of ACCA. United States v. Canty,
570 F.3d 1251, 1254-55 (11th Cir. 2009). However, we review issues raised for
the first time on appeal for plain error. United States v. Wright,
607 F.3d 708, 715
(11th Cir. 2010). A non-jurisdictional challenge to the sufficiency of an indictment
can be forfeited and thus subject to plain error review. United States v. Cotton,
535 U.S. 625, 631 (2002). “Plain error occurs if (1) there was error, (2) that was
plain, (3) that affected the defendant’s substantial rights, and (4) that seriously
affected the fairness, integrity, or public reputation of judicial proceedings.”
Wright, 607 F.3d at 715 (internal quotation marks omitted). No plain error can
exist when “the explicit language of a statute or rule does not specifically resolve
an issue” and “there is no precedent from the Supreme Court or this Court directly
resolving it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir.
2003). To prove that an error affected his substantial rights, the defendant must
“show a reasonable probability that, but for the error, the outcome of the
2
This Court also stayed appellate proceedings pending the Supreme Court’s decision in
Shular v. United States,
140 S. Ct. 779 (2020). See infra note 3.
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proceeding would have been different.” Molina-Martinez v. United States,
136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted).
We do not review invited error. United States v. Love,
449 F.3d 1154, 1157
(11th Cir. 2006). “The doctrine of invited error is implicated when a party induces
or invites the district court into making an error.”
Id. (internal quotation marks
omitted). We have applied the doctrine of invited error where the party
affirmatively requested or specifically agreed with the challenged action of the
district court. See, e.g., United States v. Silvestri,
409 F.3d 1311, 1337 (11th Cir.
2005).
Under the prior panel precedent rule, “a prior panel’s holding is binding on
all subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this [C]ourt sitting en banc.” United States
v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008). To overrule a prior decision, the
Supreme Court or en banc decision must be clearly on point.
Id.
III. DISCUSSION
Hollie challenges his conviction and sentence. We address each in turn.3
3
Hollie raises a few other challenges that our precedent forecloses. See
Archer, 531 F.3d
at 1352. He argues that § 922(g)(1) is unconstitutional, both facially and as applied, because it
exceeds Congress’s authority under the Commerce Clause. He failed to make this argument in
the district court, so we review it only for plain error. Hollie cannot show plain error. We have
repeatedly upheld § 922(g)(1) as a constitutional exercise of Congress’s Commerce Clause
power. See United States v. Wright,
607 F.3d 708, 715 (11th Cir. 2010) (citing cases). And we
have held that the statute is constitutional as applied where the government proved a “minimal
nexus” to interstate commerce by demonstrating that the firearm traveled in interstate commerce.
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A. Hollie’s Conviction
Hollie argues for the first time on appeal that his indictment and the jury
instructions improperly omitted an element of the offense—that he knew he was a
convicted felon at the time he possessed the firearm. The Supreme Court recently
confirmed that a defendant’s knowledge of his status prohibiting him under § 922
from possessing a firearm is an element of a § 922 offense.
Rehaif, 139 S. Ct. at
2200 (“[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the
Government must prove both that the defendant knew he possessed a firearm and
that he knew he belonged to the relevant category of persons barred from
possessing a firearm.”). Hollie contends that the indictment failed to state this
Id. at 715-16. Here, the parties stipulated that the firearm traveled in interstate commerce. We
therefore reject this challenge.
Hollie also argues that his ACCA enhancement violates the Fifth and Sixth Amendments
because his indictment did not allege, and the jury did not find, that his prior convictions
qualified as serious drug offenses and were committed on different occasions. We previously
have rejected this same argument. See United States v. Deshazior,
882 F.3d 1352, 1358 (11th
Cir. 2018); United States v. Sparks,
806 F.3d 1323, 1350 (11th Cir. 2015); United States v.
Weeks,
711 F.3d 1255, 1259 (11th Cir. 2013), abrogated on other grounds by Descamps v.
United States,
570 U.S. 254, 257-58 (2013).
Finally, Hollie argues that his 2005 conviction for delivery of cocaine does not qualify as
an ACCA predicate offense because the statute under which he was convicted, Florida Statutes
§ 893.101, does not require knowledge of the illicit nature of a substance and ACCA is not
intended to cover strict liability offenses. He suggests that federal drug trafficking statutes,
which require such knowledge, are generic analogues and that a state offense must match the
generic analogue as to mens rea to qualify. Binding precedent forecloses this challenge. See
United States v. Smith,
775 F.3d 1262, 1267-68 (11th Cir. 2014) (rejecting the argument that
ACCA only encompasses convictions that require knowledge of the illicit nature of the
controlled substance). We held this case pending the Supreme Court’s decision in Shular v.
United States,
140 S. Ct. 779 (2020), which had the potential to affect Smith’s viability, but as
Hollie acknowledges Shular did not undermine Smith.
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essential element of the offense, violating his Fifth Amendment right that a grand
jury find probable cause to support each element of an offense and Sixth
Amendment right that he be informed of the nature and cause of the accusation
against him. 4 Relatedly, Hollie argues that the jury was not properly instructed
that he could only be found guilty if he knew at the time of the possession that he
was a convicted felon. We reject both arguments.
As to his indictment, Hollie has established an error that Rehaif made plain.
“Rehaif made clear that the government must prove that a defendant knew of his
prohibited status when he possessed a firearm or ammunition.” United States v.
Reed,
941 F.3d 1018, 1021 (11th Cir. 2019). Hollie’s indictment did not allege
that he knew he was a convicted felon. He therefore has established plain error.
Id. He has not, however, established that the error affected his substantial rights.
In Reed, we held that the defendant could not prove the Rehaif error affected
his substantial rights because he could not show a reasonable probability that the
outcome of his trial would have been different had the error not occurred.
Id. at
1021-22. Reed, who had been convicted of eight prior felonies, admitted that he
4
Hollie contends that an indictment’s Rehaif-based defect is jurisdictional. He argues
that Rehaif made clear that a § 922(g) offense must be charged alongside § 924(a)(2), which
provides: “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as
provided in this title, imprisoned not more than 10 years, or both.” An indictment that does not
charge both, Hollie says, does not vest the district court with subject matter jurisdiction. We
recently rejected this argument. See United States v. Moore,
954 F.3d 1322, 1336-37 (11th Cir.
2020). We are bound by Moore. See
Archer, 531 F.3d at 1352.
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had served 18 years in prison before his arrest; stipulated that he had been
convicted of a felony offense and had not had his civil rights restored, including
the right to possess and bear arms; and testified at trial that he was not allowed to
have a firearm.
Id. at 1020-22. We concluded that the record established that
Reed knew he was a felon, and so he could not prove that the errors affected his
substantial rights or the fairness, integrity, or public reputation of his proceedings.
Id. at 1022; see also United States v. Moore,
954 F.3d 1322, 1337-38 (11th Cir.
2020) (concluding that the defendants had failed to show a reasonable probability
that the Rehaif error affected the outcome of their trial, reasoning that they had
both “previously served lengthy sentences for felony convictions” and emphasizing
that both “stipulated to their prior felonies, presumably to keep the jury from
hearing any details of those convictions”).
Like in Reed, Hollie cannot establish that his substantial rights were
affected. “As the reviewing court, we may consult the whole record when
considering the effect of any error on [Hollie’s] substantial rights.”
Reed, 941 F.3d
at 1021 (alterations adopted) (internal quotation marks omitted). As a whole, the
record shows that Hollie had been convicted of multiple prior felony offenses, had
actually served several sentences of more than 12 months’ imprisonment, and had
stipulated that he had been convicted of a felony and had not had his civil rights
restored. Further, with respect to the instant offense, Hollie had attempted to hide
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the firearm as the police approached him—evidencing his knowledge that he was
prohibited from possessing a firearm. There is ample evidence in the record
showing that Hollie knew of his status as a convicted felon when he possessed the
firearm in this case. Thus, he has failed to show a reasonable likelihood that the
outcome of his trial would have been different but for the error in the indictment
and cannot establish that his substantial rights were affected. See
Reed, 941 F.3d at
1022.
As to Hollie’s challenge to the court’s failure to instruct the jury on the
knowledge of status element, we note that Hollie proposed jury instructions jointly
with the government. By specifically requesting these jury instructions, he has
invited any error and has waived his right to challenge the district court’s failure to
use a different instruction. See United Sates v. Frank,
599 F.3d 1221, 1240 (11th
Cir. 2010); United States v. Fulford,
267 F.3d 1241, 1247 (11th Cir. 2001).
For these reasons, we affirm Hollie’s conviction.
B. Hollie’s Sentence
Hollie next challenges his ACCA-enhanced sentence. ACCA subjects a
defendant convicted under § 922(g) to a mandatory minimum sentence of 15 years’
imprisonment if he has three prior convictions for a violent felony or serious drug
offense, or both, “committed on occasions different from one another.” 18 U.S.C.
§ 924(e). Section 924(e) requires that the occasions arise out of separate and
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distinct criminal episodes that are temporally distinct. United States v. McCloud,
818 F.3d 591, 595 (11th Cir. 2016). The burden is on the government to prove that
the prior convictions “arose out of a separate and distinct criminal episode.”
United States v. Sneed,
600 F.3d 1326, 1329 (11th Cir. 2010) (internal quotation
marks omitted).
Hollie argues, for the first time on appeal, that the government failed to meet
this burden. He contends that the district court erred in looking to facts in the PSR,
including dates of his state-court convictions, to determine that the three delivery
of cocaine convictions arose out of separate and distinct criminal episodes. In
support, he cites Descamps v. United States,
570 U.S. 254 (2013), and Mathis v.
United States,
136 S. Ct. 2243 (2016), in which the Supreme Court held that a
district court must look to the elements of an offense to determine whether it
qualifies as an ACCA predicate.
Hollie’s argument is the sum of two parts. First, he argues that “[n]o district
court may rely on non-elemental facts to determine whether a prior conviction is an
ACCA predicate.” Appellant’s Br. at 10. Second, he argues that the only
permissible evidence a court may rely on are judicial records of conviction—so-
called “Shepard” documents5—and not facts from a PSR. We have rejected the
5
See Shepard v. United States,
544 U.S. 13, 16 (2005) (explaining that, when
determining the nature of a prior conviction, a court “is generally limited to examining the
statutory definition [of the offense from the prior conviction], charging document, written plea
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first part of Hollie’s argument. See United States v. Weeks,
711 F.3d 1255, 1259
(11th Cir. 2013) (“[D]istrict courts may determine both the existence of prior
convictions and the factual nature of those convictions, including whether they
were committed on different occasions, so long as they limit themselves to
Shepard-approved documents.”), abrogated on other grounds by
Descamps, 570
U.S. at 257-58. We reaffirmed this rule from Weeks after Descamps issued. See
United States v. Longoria,
874 F.3d 1278, 1283 (11th Cir. 2017) (concluding that a
defendant’s argument “that the [d]istrict [c]ourt should not have looked at ‘non-
elemental facts,’ the dates of his prior convictions, in Shepard-approved
documents when deciding whether his predicate offenses were committed on
different occasions” was “directly foreclosed by” Weeks).
Hollie acknowledges Longoria but “submits that Descamps, and Mathis, and
[our decision in United States v.] Sneed control.” Appellant’s Br. at 14. We
disagree. In Sneed, we held that a court cannot consider police reports and other
evidence outside a judicial record of conviction to determine whether offenses
were committed on distinct
occasions. 600 F.3d at 1332. This decision is
consistent with Longoria and Weeks. Longoria was decided after Descamps; thus,
Descamps could not have abrogated or overruled it. And Mathis is not clearly on
agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which
the defendant assented”).
12
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point; thus, it cannot overrule or undermine to the point of abrogation our rule in
Weeks, relied upon in Longoria.6
Archer, 531 F.3d at 1352.
The second part of Hollie’s argument also fails under a plain error standard
of review. This Court has consistently held that the district court may rely on
undisputed statements in the PSR to make findings of fact, including when
determining the nature of a prior conviction.
McCloud, 818 F.3d at 595; see
United States v. Bennett,
472 F.3d 825, 832 (11th Cir. 2006) (“A sentencing
court’s findings of fact may be based on undisputed statements in the [PSR].”).
And “the district court ha[s] the authority to apply the ACCA enhancement based
on its own factual findings.”
Weeks, 711 F.3d at 1260. These cases suggest—if
they do not confirm—that a district court may rely on undisputed statements in a
PSR to determine whether offenses were committed on distinct occasions such that
they can be separate ACCA predicate offenses.
6
In Descamps, the Supreme Court held that in determining whether a particular
conviction qualifies as a predicate offense under ACCA, federal courts use two different
approaches depending on the statutory
scheme. 570 U.S. at 257. If a statute contains a single,
indivisible set of elements, courts must use the categorical approach, which looks only to the
elements of the offense to determine the qualification of a prior conviction.
Id. at 257-58. If,
however, the statute contains alternative sets of elements, such that it is divisible, courts may use
the modified categorical approach.
Id. at 257. That approach allows for a limited inquiry in
Shepard documents for determining under what set of elements the defendant had been
previously convicted.
Id. at 257, 263.
In Mathis the Court clarified that courts may not use the modified categorical approach
where a statute lays out alternative means of committing a single element, rather than alternative
elements. 136 S. Ct. at 2253-55.
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IV. CONCLUSION
For the foregoing reasons, we affirm Hollie’s conviction and sentence.
AFFIRMED.
14