USA v. Ronald George Latson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14934
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD GEORGE LATSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00552-SDM-AAS-1
____________________
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2 Opinion of the Court 19-14934
Before LAGOA , BRASHER , and TJOFLAT, Circuit Judges.
PER CURIAM:
There are two issues in this criminal appeal. First, whether
18 U.S.C. § 922(g) violates the Constitution. And second, whether
the district court plainly erred in enhancing Ronald Latson’s sen-
tence for violating Section 922(g) under the Armed Career Crimi-
nal Act, 18 U.S.C. § 924(e). Our precedent answers the first ques-
tion in the negative and the second in the positive. Accordingly, we
affirm Latson’s conviction, vacate his sentence, and remand for re-
sentencing.
I. BACKGROUND
On June 22, 2018, Tampa police arrested Ronald George
Latson after responding to a complaint that he had been selling ma-
rijuana at a park. When officers searched Latson, they found a fire-
arm and ammunition. Latson was later indicted in the Middle Dis-
trict of Florida on a single count of knowingly possessing a firearm
and ammunition in and affecting interstate commerce while hav-
ing been convicted of a felony, a violation of Sections 922(g)(1) and
924(e). Latson pleaded guilty, and the court accepted his plea.
After the Supreme Court decided
Rehaif v. United States,
588 U.S. ___, 139 S. Ct. 2191 (2019), the district court vacated the
plea. Latson then moved to dismiss the Section 922(g) count, argu-
ing that the statute exceeded Congress’s legislative authority under
the Commerce Clause. The district court denied his motion.
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19-14934 Opinion of the Court 3
After the motion to dismiss failed, Latson waived his right
to be charged by indictment and was charged again in a supersed-
ing information, this time of knowing that he was a convicted felon
and knowingly possessing a firearm and ammunition. He then en-
tered a new guilty plea, and was sentenced to 180 months in prison,
the mandatory minimum prison sentence under the Armed Career
Criminal Act, plus sixty months of supervised release.
Latson’s presentence investigation report found that his to-
tal offense level was twenty-five but revised that total up to thirty-
one based on an Armed Career Criminal Act enhancement. The
report cited five qualifying convictions under Florida’s drug crimes
statute, Fla. Stat. § 893.13, as predicates: four relating to marijuana
and one relating to cocaine. With the enhancement included, the
report found that Latson’s guidelines range was 188-to-235 months
with a mandatory minimum of 180 months in prison. Without the
enhancement, his guidelines range would have been 110-to-137
months with a statutory maximum of 120 months in prison and
thirty-six months of supervised release. Although Latson objected
to the enhancement before the district court, he never argued that
his marijuana convictions were not qualifying “serious drug of-
fenses” because Florida law criminalized a broader category of ma-
rijuana than federal law.
Latson timely appealed both his conviction and his sentence.
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4 Opinion of the Court 19-14934
II. DISCUSSION
A. Section 922(g) Does Not Violate the Constitution
Latson argues that his conviction should be vacated because
Section 922(g) exceeds Congress’s legislative authority under the
Commerce Clause. But Latson’s brief acknowledges that our bind-
ing precedent forecloses such a challenge, and we agree.
See United
States v. Scott, 263 F.3d 1270, 1271–74 (11th Cir. 2001);
United
States v. Wright, 607 F.3d 708, 715–16 (11th Cir 2010).
B. The District Court Plainly Erred by Enhancing Latson’s
Sentence
Latson next argues that his sentence was unlawful because
his four Florida marijuana convictions were not “serious drug of-
fenses” under the Armed Career Criminal Act. 18 U.S.C.
§ 924(e)(1). Specifically, he argues that Florida law criminalizes the
“mature stalks” of the cannabis plaint, but federal law does not. Ac-
cordingly, he contends, his Florida convictions are not “serious
drug offenses” that serve as valid predicates capable of supporting
a sentencing enhancement. And if his four marijuana convictions
had not been considered “serious drug offenses,” Latson would not
have possessed the requisite three convictions necessary to qualify
for an Armed Career Criminal Act enhancement.
See id.
Our review is complicated by Latson’s failure to raise and
litigate this argument in a timely manner. Latson raised this argu-
ment for the first time on appeal—not in the district court. And,
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19-14934 Opinion of the Court 5
even on appeal, he first raised it in a supplemental filing—not his
opening brief. Accordingly, we must begin by evaluating whether
we can consider this argument at all and, if we can, whether Latson
can establish plain error.
We turn first to Latson’s failure to raise this argument in his
opening brief. In the usual course, an appellant’s failure to make an
argument in his initial brief forfeits that argument.
United States v.
Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc). But we may
forgive such a forfeiture upon consideration of five factors. Those
factors are (1) whether the argument involves a pure question of
law, the refusal to consider which would result in a miscarriage of
justice; (2) whether the party raises an objection to an order which
he had no opportunity to challenge below; (3) whether the interest
of substantial justice is at stake; (4) whether the proper resolution
of the issue is beyond any doubt; and (5) whether the issue presents
significant questions of general impact or great public concern.
Ac-
cess Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir.
2004).
Upon consideration of the
Access Now factors, we forgive
Latson’s forfeiture because his argument: (1) involves a pure ques-
tion of law, the refusal to consider which would result in the affir-
mance of a sentence exceeding the statutory maximum; (2) impli-
cates the interests of substantial justice; and (3) concerns an issue
the resolution of which is beyond doubt in the light of our recent
precedents.
See Said v. U.S. Att’y Gen., 28 F.4th 1328, 1333 (11th
Cir. 2022).
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6 Opinion of the Court 19-14934
Having concluded that we can consider the argument de-
spite Latson’s failure to raise it in his opening brief on appeal, we
review only for plain error because Latson failed to raise the argu-
ment before the district court.
Wright, 607 F.3d at 715. “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.”
Id.
(internal quotation marks omitted).
Turning to the first element of plain error, the government
concedes, and we agree, that Latson has established that the district
court erred in enhancing his sentence. We apply the categorical ap-
proach to determine whether a particular Florida drug offense is a
“serious drug offense” under the Armed Career Criminal Act.
See
Shular v. United States, 589 U.S. ___, 140 S. Ct. 779, 783 (2020);
United States v. Jackson, 36 F.4th 1294, 1300 (11th Cir. 2022);
Guil-
len v. U.S. Att’y Gen., 910 F.3d 1174, 1183 (11th Cir. 2018). That is,
we look to whether the least culpable conduct criminalized by the
state statute is a “serious drug offense” under federal law. Latson
notes that Florida law at the time of his convictions prohibited the
possession of “the mature stalks of [the cannabis] plant” but federal
law does not. Indeed, Florida has criminalized mature cannabis
stalks since 1979,
see Fla. Stat. § 893.02, historical and statutory
notes (citing Laws 1979, c. 79-325, § 1), and federal law allowed
possession of mature stalks both at the time of Latson’s federal fire-
arm offense and at all other potentially relevant times,
see 21 U.S.C.
802(16) (Effective Apr. 15, 2009, to Dec. 17, 2014);
id. (Effective
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19-14934 Opinion of the Court 7
Dec. 18, 2014, to July 21, 2014);
id. (Effective July 22, 2016, to Oct.
23, 2018);
id. (Effective Dec. 21, 2018, to present).
Because of this mismatch between Florida and federal law,
Latson reasons that his Florida marijuana convictions are not “se-
rious drug offenses” under federal law. Our recent decision in
Said
adopts Latson’s position. In
Said, we held that (1) a mismatch be-
tween Florida and federal law exists as to the treatment of mature
cannabis stalks and (2) the “significant divergence” between the
two is “on its own . . . sufficient to establish a realistic probability
of broader prosecution under Florida law.” 28 F.4th at 1333.
See
also Chamu v. U.S. Att’y Gen., 23 F.4th 1325, 1330 (11th Cir. 2022)
(addressing “realistic probability” standard). Because the same dis-
parity between the Florida law and federal law in
Said also exists
here, the district court erred by enhancing Latson’s sentence based
on his Florida marijuana convictions.
Second, the government concedes, and we agree, that the
district court’s error was plain. To be plain, an error must be “clear
under current law,”
United States v. Chau, 426 F.3d 1318, 1322
(11th Cir. 2005) (quoting
United States v. Olano, 507 U.S. 725, 734
(1993)), as expressed by either “the explicit language of a statute or
rule” or “precedent from the Supreme Court or this Court” that
directly resolves the issue,
id. (quoting
United States v. Lejarde-
Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)).
Said directly resolves
the legal issue in Latson’s favor. Although the district court did not
have the benefit of
Said, that timing does not matter for the pur-
poses of plain error review.
See United States v. Jones, 743 F.3d 826,
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8 Opinion of the Court 19-14934
829–30 (11th Cir. 2014) (applying an “intervening decision” on
plain error review).
Finally, Latson has shown that the plain error affected both
his substantial rights and the fairness, integrity, or public reputation
of judicial proceedings. Without the Armed Career Criminal Act
Enhancement, Latson would have faced a 120-month mandatory
maximum prison sentence followed by at most thirty-six months
of supervised release. 18 U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(b)(2).
With the enhancement, he was instead subject to a 180-month
mandatory minimum, to which the district court added sixty
months of supervised release. We have held that an improperly en-
hanced sentence exceeding the statutory maximum justifies relief
on plain-error review.
Jones, 743 F.3d at 830.
III. CONCLUSION
For the foregoing reasons, Latson’s conviction is
AFFIRMED. His sentence is VACATED and REMANDED for re-
sentencing.
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