USA v. Ameche LaShaun Curry

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13707
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMECHE LASHUAN CURRY,
a.k.a. Meche,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:19-cr-00388-LCB-GMB-7
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2 Opinion of the Court 21-13707
____________________
Before R OSENBAUM , JILL PRYOR , and G RANT, Circuit Judges.
PER CURIAM:
Ameche Curry appeals his 151-month sentence. He argues
that the district court erred in calculating his criminal history score
because it assigned criminal history points to his uncounseled mis-
demeanor convictions. After careful consideration, we affirm.
I.
Curry pled guilty to conspiring to distribute controlled sub-
stances and other offenses. Prior to his sentencing hearing, a pro-
bation officer prepared a pre-sentencing investigation report
(“PSI”).
Among other things, the PSI calculated Curry’s criminal his-
tory score. It reported that Curry had several prior convictions that
received criminal history points. Curry had a 2004 Alabama convic-
tion for third-degree robbery for which he had received a three-
year sentence; the PSI assigned three points to this conviction.
The PSI also identified five other prior convictions that
could score criminal history points. These convictions, all for mis-
demeanors, were:
• A 2008 Alabama conviction for assault in the third de-
gree. For this offense, Curry was sentenced to 10 days in
custody as well as 24 months of unsupervised probation
and ordered to pay a fine.
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21-13707 Opinion of the Court 3
• A 2008 Alabama conviction for theft of property in the
third degree. For this offense, Curry was sentenced to 24
months of unsupervised probation and ordered to pay a
fine.
• A 2012 Alabama conviction for assault in the third degree.
For this offense, Curry was sentenced to 10 days in cus-
tody, suspended, as well as 24 months of unsupervised
probation and ordered to pay a fine.
• A 2015 Alabama conviction for assault in the third degree.
For this offense, Curry was sentenced to 30 days in cus-
tody, suspended, as well as 24 months of probation and
ordered to pay a fine and participate in anger manage-
ment counseling.
• A 2015 Alabama conviction for harassment in the third de-
gree. For this offense, Curry was sentenced to 30 days in
custody, suspended, as well as 24 months of probation
and ordered to pay a fine and participate in anger manage-
ment counseling.
For each of these prior convictions, the PSI reported that it was
unknown whether Curry had been represented by counsel. The
PSI assigned one point to each prior conviction. Because the Sen-
tencing Guidelines provide that a defendant can receive a maxi-
mum of four points from one-point prior sentences, the PSI ulti-
mately assigned Curry a total of four points for the five prior con-
victions.
See U.S. Sent’g Guidelines Manual § 4A1.1(c). These
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4 Opinion of the Court 21-13707
additional points boosted Curry’s criminal history category from II
to IV and increased his sentencing range under the Guidelines.
At the sentencing hearing, the district court adopted the
PSI’s criminal history score calculation and assigned Curry a crim-
inal history category of IV. The district court ultimately imposed a
sentence of 151 months, which was at the low end of the applicable
Guideline range. This is Curry’s appeal.
II.
We review
de novo the district court’s application of the
Sentencing Guidelines.
United States v. Smith, 231 F.3d 800, 806
(11th Cir. 2000). We also review constitutional challenges to sen-
tences
de novo.
United States v. Longoria, 874 F.3d 1278, 1281
(11th Cir. 2017).
III.
Under the Sentencing Guidelines, a court calculates a de-
fendant’s criminal history score by looking at the sentences im-
posed for his prior criminal convictions. In general, a sentencing
court assigns three criminal history points for each prior sentence
of imprisonment exceeding one year and one month, two points
for each prior sentence of imprisonment between 60 days and one
year and one month, and one point for each prior sentence not oth-
erwise counted. U.S.S.G. § 4A1.1(a)–(c). Prior sentences that earn
one criminal history point under § 4A1.1(c) include sentences of
imprisonment lasting less than 60 days. In addition, a sentence may
earn one point when it includes no term of imprisonment, such as
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21-13707 Opinion of the Court 5
when a defendant is placed on probation, receives a fine, or is re-
quired to live in a halfway house.
See id. § 4A1.1, cmt. Background.
Curry challenges the addition of four criminal history points
based on his one-point prior convictions. He argues that the district
court’s assignment of criminal history points to these uncounseled
misdemeanor convictions violated his constitutional rights.
Both the Supreme Court and this Court have addressed
when a court may consider a sentence imposed for a prior uncoun-
seled misdemeanor when calculating a defendant’s criminal history
score under the Sentencing Guidelines. In
Nichols v. United States,
the Supreme Court held that there was no Sixth Amendment vio-
lation when a sentencing court assigned a criminal history point to
a defendant’s previous misdemeanor conviction for which he was
uncounseled when the sentence involved a fine but no incarcera-
tion. 511 U.S. 738, 740, 746–47 (1994). Later, in
United States v.
Acuna-Reyna, we addressed whether a sentencing court could “as-
sess a criminal history point for an uncounseled misdemeanor con-
viction where the defendant was sentenced to probation and a
monetary fine.” 677 F.3d 1282, 1282 (11th Cir. 2012). For purposes
of that appeal, we assumed that the defendant had a right to coun-
sel in a misdemeanor case when the court imposed a sentence of
probation.
Id. at 1284. We nevertheless concluded that the sentenc-
ing court could assign a criminal history point to the sentence be-
cause “when a sentence is imposed in violation of a defendant’s
Sixth Amendment right to counsel, the proper remedy is to vacate
that portion of the sentence offensive to the Sixth Amendment
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without doing harm to the defendant’s conviction or the remain-
ing, constitutionally inoffensive, portions of his sentence.”
Id. at
1284–85 (alteration adopted) (internal quotations marks omitted).
Even after setting aside the probation portion of the sentence, the
defendant’s conviction and monetary fine remained valid. As a re-
sult, the sentencing court could assign a criminal history point for
the uncounseled misdemeanor conviction based on the fine.
Id. at
1286.
Curry does not dispute that under
Nichols and
Acuna-Reyes,
the district court properly assigned him four criminal history points
because he had at least four prior misdemeanor convictions for
which he received a sentence that included a fine. He argues, none-
theless, that
Nichols and
Acuna-Reyna were wrongly decided and
that it is inconsistent with the text of the Sixth Amendment to as-
sign a criminal history point to an uncounseled misdemeanor con-
viction that involved a fine. Instead of following the majority opin-
ion in
Nichols, he argues, we should follow Justice Blackmun’s dis-
sent in that case. But as a federal inferior court, we remain bound
by the majority opinion in
Nichols.
See Prison Legal News v. Sec’y,
Fla. Dep’t of Corr., 890 F.3d 954, 966 (11th Cir. 2018) (“The only
Court that can properly cut back on Supreme Court decisions is the
Supreme Court itself.”). Similarly, although Curry urges us to cast
aside
Acuna-Reyna, under our prior panel precedent rule, we re-
main bound by the decision.
See Smith v. GTE Corp., 236 F.3d
1292, 1300 n.8 (11th Cir. 1998) (“[T]he holding of the first panel to
address an issue is the law of this Circuit, thereby binding all
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21-13707 Opinion of the Court 7
subsequent panels unless and until the first panel’s holding is over-
ruled by the Court sitting en banc or by the Supreme Court.”).
Applying the Supreme Court’s decision in
Nichols and our
decision in
Acuna-Reyna, we cannot say that the district court
erred when it assigned four criminal history points for Curry’s prior
uncounseled misdemeanor convictions.
AFFIRMED.
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