USA v. Terrell Javon Jones

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11841
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRELL JAVON JONES,
a.k.a. Terrell Javon Jones, Jr.
a.k.a. Terrell Javon Jones, II,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:18-cr-00136-TJC-PDB-1
____________________
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2 Opinion of the Court 20-11841
Before L UCK , LAGOA , and B RASHER , Circuit Judges.
PER C URIAM :
The Armed Career Criminal Act enhances the sentences of
defendants who violate 18 U.S.C. section 922(g) and also have at
least three prior convictions for violent felonies, serious drug of-
fenses, or both, committed on different occasions. 18 U.S.C.
§ 924(e). After pleading guilty to a violation of 18 U.S.C. section
922(g)(1), Terrell Jones was sentenced to the Act’s fifteen-year min-
imum.
See id. § 924(e)(1). On appeal, Jones asks us to vacate his
sentence, arguing that (1) the Act’s different-occasions provision is
unconstitutionally vague on its face, (2) the district court erred in
using
Shepard v. United States, 544 U.S. 13 (2005) documents to
find the non-elemental facts that Jones’s prior convictions occurred
on different occasions, and (3) his prior convictions do not qualify
under the Act because they have no mens rea requirement. After
careful review, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Jones committed seven cocaine offenses on seven dates in
2011 and 2012. He sold or delivered cocaine on December 14 and
28, 2011, and on February 24, April 18, May 2, and June 18, 2012.
And he sold, manufactured, or delivered cocaine within one thou-
sand feet of a community center on February 21, 2012. He was
convicted of these offenses in October 2012. Years earlier, in No-
vember 2009, Jones was also convicted of possession of cocaine.
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20-11841 Opinion of the Court 3
On June 12, 2018, at approximately 11:20 P.M., Jones drove
to a gas station with his eight-year-old nephew, a loaded gun, four
small bags of powder cocaine, and one piece of crack cocaine.
Jones got out of the car with the gun in his hand, threw it into the
backseat, and went to talk to someone. Later, after he was ar-
rested, Jones admitted that he had the gun in his hand and that he
threw it into the backseat. He also admitted to being in prison from
2012 to 2016.
A grand jury indicted Jones on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. sections 922(g)(1)
and 924(e). Jones pleaded guilty. The presentence investigation
report recommended that he receive the Act’s sentencing enhance-
ment—and thus the fifteen-year statutory minimum—because his
seven 2011 and 2012 cocaine convictions constituted serious drug
offenses. Without the enhancement, the statutory maximum
would have been ten years.
See 18 U.S.C. § 924(a)(2).
Jones objected to the enhancement. He argued that the
Act’s different-occasions provision was unconstitutionally vague
on its face and
Shepard documents could not be used to find the
non-elemental facts that he committed his prior offenses on differ-
ent occasions. Jones also argued that his cocaine convictions did
not qualify as serious drug offenses under the Act because they did
not require him to know the illicit nature of the substance (i.e. co-
caine).
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4 Opinion of the Court 20-11841
The district court overruled Jones’s objections, adopted the
presentence investigation report without change, and sentenced
Jones to the statutory minimum fifteen years in prison.
STANDARD OF REVIEW
We review de novo “whether a statute is unconstitutionally
vague.”
United States v. Duran, 596 F.3d 1283, 1290 (11th Cir.
2010). We also review de novo “whether prior offenses meet the
[Act’s] different-occasions requirement” and “whether a prior con-
viction qualifies as a serious drug offense for purposes of the [Act].”
United States v. Longoria, 874 F.3d 1278, 1281 (11th Cir. 2017).
DISCUSSION
On appeal, Jones makes the same three arguments he made
in his objections to the fifteen-year statutory minimum sentence
under the Act. We address them in turn.
Vagueness
Jones challenges the constitutionality of the Act’s different-
occasions provision as failing to provide a legitimate standard and
thus allowing arbitrary enforcement. The Supreme Court recently
approved a multifactor test for the different-occasions inquiry that
considers the predicate offenses’ proximity in time, “[p]roximity of
location,” and “the character and relationship of the offenses.”
Wooden v. United States, 142 S. Ct. 1063, 1071 (2022) (“Offenses
committed close in time, in an uninterrupted course of conduct,
will often count as part of one occasion; not so offenses separated
by substantial gaps in time or significant intervening events.
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20-11841 Opinion of the Court 5
Proximity of location is also important; the further away crimes
take place, the less likely they are components of the same criminal
event. And the character and relationship of the offenses may make
a difference: The more similar or intertwined the conduct giving
rise to the offenses—the more, for example, they share a common
scheme or purpose—the more apt they are to compose one occa-
sion.”). Jones contends that “the multifactor test both deprives de-
fendants of fair notice and leads to arbitrary enforcement.”
The government argues that Jones may not bring a facial
challenge to the different-occasions provision because he clearly
committed his predicate offenses on different occasions—Jones’s
prior convictions were not remotely “close in time.” The govern-
ment also argues that the different-occasions provision is not vague
because persons of ordinary intelligence can comprehend it.
See
Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301,
1310 (11th Cir. 2009) (“To overcome a vagueness challenge, stat-
utes must ‘give the person of ordinary intelligence a reasonable op-
portunity to know what is prohibited, so that he may act accord-
ingly,’ and ‘must provide explicit standards for those who apply
them.’” (quoting
Grayned v. City of Rockford, 408 U.S. 104, 108
(1972))). We agree with the government.
A person (other than a plaintiff raising a First Amendment
claim) “who engages in some conduct that is clearly proscribed can-
not complain of the vagueness of the law as applied to the conduct
of others.”
Stardust, 3007 LLC v. City of Brookhaven, 899 F.3d
1164, 1176 (11th Cir. 2018) (quoting
Hoffman Estates v. Flipside,
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6 Opinion of the Court 20-11841
455 U.S. 489, 495 (1982) (alteration adopted)). Jones’s conduct
clearly falls within the reach of the different-occasions provision.
He committed seven offenses on seven different days over a six-
month period: in December 2011, February 2012, April 2012, May
2012, and June 2012. They were not close in time.
See Wooden,
142 S. Ct. at 1071 (“Courts . . . have nearly always treated offenses
as occurring on separate occasions if a person committed them a
day or more apart . . . .”). Jones clearly committed at least three
offenses on different occasions that were not close in time, and thus
cannot challenge the provision as applied to others with prior con-
victions that were close in time.1
In any event, the different-occasions provision is not uncon-
stitutionally vague. The Act provides that the defendant’s prior vi-
olent felonies or serious drug offenses must have been “committed
on occasions different from one another.” 18 U.S.C. § 924(e). This
1
Johnson v. United States, 576 U.S. 591 (2015) and
Sessions v. Dimaya, 138 S.
Ct. 1204 (2018) did not overrule the Supreme Court’s longstanding rule, and
ours, that a person (other than a plaintiff raising a First Amendment claim)
who engages in some conduct that is clearly proscribed by a statute cannot
complain of the vagueness of the law as applied to the conduct of others.
See,
e.g.,
United States v. Cook, 970 F.3d 866, 877 (7th Cir. 2020) (“
Johnson did not
alter the general rule that a defendant whose conduct is clearly prohibited by
a statute cannot be the one to make a facial vagueness challenge.” (citing
United States v. Westbrooks, 858 F.3d 317, 325–26 (5th Cir. 2017)));
United
States v. Bramer, 832 F.3d 908, 909–10 (8th Cir. 2016) (“Though [the defend-
ant] need not prove that [the challenged statute] is vague in all its applications,
our case law still requires him to show that the statute is vague as applied to
his particular conduct.”).
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20-11841 Opinion of the Court 7
language gives persons of ordinary intelligence fair notice that
committing qualifying offenses on different occasions will result in
the sentencing enhancement, and it permits non-arbitrary enforce-
ment,
see Johnson, 576 U.S. at 595, through
Wooden’s multifactor
test,
see 142 S. Ct. at 1071.
Jones contends that the different-occasions provision is as
“hopelessly indeterminate” and “shapeless” as the Act’s now-inval-
idated residual clause.
Johnson, 576 U.S. at 598, 602. But the resid-
ual clause posed a special problem: it required that courts apply a
qualitative standard of risk to “an idealized ordinary case of the
crime” and therefore “offer[ed] significantly less predictability”
than an inquiry into actual, rather than imaginary, facts.
Id. at 604.
The different-occasions inquiry avoids this problem by focusing on
what the defendant actually did, as reflected in
Shepard documents.
This takes the different-occasions provision outside the vagueness
problem that affected the residual clause.
See, e.g.,
United States
v. Morris, 821 F.3d 877, 880 (7th Cir. 2016) (“[The defendant] ar-
gues that the ‘committed on occasions different from one another’
language of the [Act] is unconstitutionally vague because the stat-
ute does not specify a methodology for determining whether crim-
inal acts are considered separate events. He contends that this
vagueness grants undue discretion to courts and that the [Act] fails
to provide people of ordinary intelligence a reasonable opportunity
to understand what conduct the [Act] encompasses. We disa-
gree.”);
United States v. Jenkins, 770 F.3d 507, 510 (6th Cir. 2014)
(“[The defendant] claims that the phrase ‘committed on occasions
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8 Opinion of the Court 20-11841
different from one another’ is unconstitutionally vague. But the
[d]ue [p]rocess [c]lause does not force Congress to legislate in en-
cyclopedic terms. General, qualitative, or normative terms suffice,
so long as they are sufficiently definite that ordinary people can un-
derstand what conduct is prohibited and sufficiently constrained
that the possibility of arbitrary and discriminatory enforcement is
limited.” (internal quotation marks and citations omitted and alter-
ations adopted));
United States v. Michel, 446 F.3d 1122, 1136 (10th
Cir. 2006) (“That different courts might draw subtle distinctions as
to what constitutes crimes occurring on occasions different from
one another does not necessarily render the statute vague for con-
stitutional purposes. . . . [The Act’s different-occasions] language
is sufficiently definite to let a person of ordinary intelligence . . .
know that if he committed three separate crimes on the same day
against separate victims at separate locations, his sentence would
be enhanced under the [Act].”).
Non-elemental factfinding
Jones also argues that, even if the different-occasions provi-
sion is constitutional, the district court erred when it undertook the
different-occasions inquiry. According to Jones, the district court
erred when it relied on the dates of his prior offenses in the
Shepard
documents to determine that he committed them on different oc-
casions because the court was limited to the offenses’ elements and
the dates were not elements. Jones acknowledges
Longoria as con-
trary precedent,
see 874 F.3d at 1281, but contends that
Longoria
conflicts with two earlier Supreme Court cases,
Mathis v. United
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20-11841 Opinion of the Court 9
States, 136 S. Ct. 2243 (2016) and
Descamps v. United States, 570
U.S. 254 (2013).
We rejected the same argument as “unavailing” in
United
States v. Dudley, 5 F.4th 1249, 1265 (11th Cir. 2021). There, as
here, the defendant argued “that
Descamps and
Mathis abrogated
our precedent regarding the different-occasions inquiry.”
Id. We
said that, “[u]nder our prior 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 this court sitting
en banc.’”
Id. (quoting
United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008)). But “[n]either
Descamps nor
Mathis,” we explained, was “clearly on point as neither case deal[t]
with the different-occasions inquiry.”
Id. (citing
Mathis, 136 S. Ct.
at 2253 and
Descamps, 570 U.S. at 257–58). “Accordingly,” we con-
cluded, neither case “abrogated our prior precedent on the differ-
ent-occasions inquiry for purposes of the [Act].”
Id.
The district court properly relied on
Shepard documents to
conclude that Jones’s prior convictions occurred on different occa-
sions.
Lack of mens rea
Jones’s final argument is that his predicate convictions do
not constitute serious drug offenses under the Act because the
crimes with which he was charged had no mens rea requirement.
All seven convictions were for violations of Florida Statutes section
893.13 that took place in 2011 and 2012. Since May 2002,
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10 Opinion of the Court 20-11841
knowledge of a drug’s illicit nature has not been an element of Flor-
ida’s drug crimes.
See Fla. Stat. § 893.101(2) (“[K]nowledge of the
illicit nature of a controlled substance is not an element of any of-
fense under [chapter 893].”);
Donawa v. U.S. Att’y Gen., 735 F.3d
1275, 1281 (11th Cir. 2013) (observing that, after section 893.101,
Florida drug offenses no longer require the state to prove beyond
a reasonable doubt that “the defendant had knowledge of the na-
ture of the substance in his possession”). Jones contends that seri-
ous drug offenses under the Act must have a mens rea require-
ment, and because, after May 2002, Florida drug crimes do not, his
convictions for those crimes cannot be serious drug offenses under
the Act.
Jones concedes that
United States v. Smith, 775 F.3d 1262
(11th Cir. 2014), forecloses his argument, but he maintains that
Smith was wrongly decided. In
Smith, we rejected this same argu-
ment to hold that drug crimes lacking a mens rea element can still
be serious drug offenses under the Act because the Act’s definition
of “serious drug offense” contains “[n]o element of mens rea with
respect to the illicit nature of the controlled substance.”
Id. at 1264,
1267 (italics removed);
see 18 U.S.C. § 924(e)(2)(A)(ii) (defining “se-
rious drug offense” to include “an offense under [s]tate law, involv-
ing manufacturing, distributing, or possessing with intent to man-
ufacture or distribute, a controlled substance (as defined in section
102 of the Controlled Substances Act (21 U.S.C. § 802)), for which
a maximum term of imprisonment of ten years or more is pre-
scribed by law”).
Smith remains good law and we’re bound by it
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20-11841 Opinion of the Court 11
until the en banc court or the Supreme Court tells us we’re not.
Accordingly, we reject Jones’s argument.
AFFIRMED.2
2 Because we’ve considered Jones’s Federal Rule of Appellate Procedure 28(j)
supplemental authority letter, and the Supreme Court’s decision in
Wooden,
we deny his motion for leave to file a supplemental brief.
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