USA v. Ryan Perrin

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12558
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RYAN PERRIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00480-SDM-TGW-1
____________________
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2 Opinion of the Court 20-12558
Before W ILSON , L UCK , and L AGOA, Circuit Judges.
PER C URIAM:
Ryan Perrin appeals his 180-month sentence after pleading
guilty to being a felon in possession of a firearm. He argues that
this sentence—enhanced under 18 U.S.C. section 924(e) because he
was deemed an armed career criminal—violated both the statute
and the Constitution. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In April 2017, a confidential informant for the Bureau of Al-
cohol, Tobacco, Firearms, and Explosives made agents aware that
Perrin was trafficking firearms from his south Florida home. The
agents set up a controlled purchase from Perrin, who sold the con-
fidential informant a .380-caliber pistol and a .22-caliber rifle. Two
weeks later, Perrin sold the confidential informant five more fire-
arms and around ninety rounds of ammunition in a second con-
trolled purchase.
At the time of the firearms sales, Perrin had several previous
state convictions, including one for selling or delivering cocaine in
2006 and two for aggravated assault in 2013. The grand jury re-
turned an indictment against Perrin, and the government later
charged him by a superseding information with two counts of pos-
sessing a firearm while a convicted felon, in violation of 18 U.S.C.
section 922(g)(1).
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20-12558 Opinion of the Court 3
Perrin pleaded guilty to both counts of the superseding in-
formation, and the district court accepted his guilty plea. His
presentencing investigation report found him subject to an en-
hanced sentence under the Armed Career Criminal Act because his
state convictions were “violent felon[ies] or . . . serious drug of-
fense[s] . . . committed on different occasions from one another.”
See 18 U.S.C. § 924(e). Perrin objected to the presentencing inves-
tigation report on the ground that the government could not use
arrest reports and probable-cause affidavits to show his prior state
convictions had occurred on “different occasions” and thus sub-
jected him to the section 924(e) enhancement. See Shepard v. United
States, 544 U.S. 13, 16 (2005) (holding that police reports may not
be used to prove eligibility for an Armed Career Criminal Act sen-
tencing enhancement).
At sentencing, the district court overruled Perrin’s objec-
tion. It explained that it didn’t need to rely on the probable cause
affidavits because it was clear from Shepard-admissible documents
that Perrin’s previous offenses occurred on separate occasions.
Having found that Perrin’s prior convictions qualified him for an
enhanced sentence under section 924(e), the district court sen-
tenced Perrin to 180 months’ imprisonment, the statutory mini-
mum sentence. Perrin timely appealed.
STANDARD OF REVIEW
We ordinarily review de novo whether a defendant qualifies
for an enhanced sentence under the Armed Career Criminal Act.
United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). We
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4 Opinion of the Court 20-12558
also review de novo a properly preserved constitutional challenge
to a defendant’s sentence. United States v. Harris, 741 F.3d 1245,
1248 (11th Cir. 2014). But “where a defendant fails to raise . . . an
objection before the district court at sentencing, we review only
for plain error.” Id. (citing United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005)).
DISCUSSION
On appeal, Perrin raises both statutory and constitutional
objections to his sentence. First, he contends that under the Armed
Career Criminal Act’s categorical approach, his Florida convictions
for aggravated assault and selling or delivering cocaine aren’t pred-
icate offenses under section 924(e). Second, he argues that the dis-
trict court improperly relied on state court records to determine
that his offenses occurred on separate occasions. Third, he asserts
that his sentence violates the Fifth and Sixth Amendments because
the superseding information did not allege the elements of section
924(e). We address each argument in turn.
A.
When Perrin pleaded guilty to the charges in the supersed-
ing information, his criminal history included one conviction for
selling or delivering cocaine under Florida Statutes section
893.13(1)(a)1., and two convictions for aggravated assault under
Florida Statutes section 784.021(1)(a). Because Perrin didn’t object
to using these offenses as the basis for his enhanced sentence before
the district court, we review only for plain error. See Harris, 741
F.3d at 1248. To show an alleged error was “plain,” Perrin must
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20-12558 Opinion of the Court 5
demonstrate that the district court’s application of 18 U.S.C. sec-
tion 924(e) was “plainly wrong” under current law. Henderson v.
United States, 568 U.S. 266, 279 (2013) (emphasis removed). Here,
he cannot.
A defendant convicted under section 18 U.S.C. section
922(g) will receive a fifteen-year mandatory minimum sentence if
he has three prior convictions for “violent felon[ies] or . . . serious
drug offense[s] . . . committed on different occasions from one an-
other.” 18 U.S.C. § 924(e). As Perrin acknowledges, we have pre-
viously held that Florida’s cocaine distribution statute is a “serious
drug offense.” See, e.g., United States v. Smith, 775 F.3d 1262, 1267
(11th Cir. 2014). That makes one qualifying offense. And, in light
of the Florida Supreme Court’s recent answer to a certified ques-
tion of state law, we recently reaffirmed our holding that Florida’s
aggravated assault statute is a “violent felony.” See Somers v. United
States, 66 F.4th 890, 892 (11th Cir. 2023). That makes qualifying
offense numbers two and three.
In supplemental briefing, Perrin argues that Somers
shouldn’t apply because, when he was convicted, Florida appellate
courts disagreed about the mens rea required under the aggravated
assault statute. But Somers rejected this argument. Because the
Florida Supreme Court’s interpretation of a statute “tells us what
that statute always meant,” a defendant “cannot rely on earlier de-
cisions of Florida’s intermediate courts of appeal to avoid” a later
holding. Id. at 696 (quotation omitted).
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6 Opinion of the Court 20-12558
B.
Perrin next contends that, even if his prior convictions were
violent felonies or serious drug offenses, the district court con-
ducted impermissible judicial factfinding to conclude they oc-
curred on “different occasions,” as is necessary for section 924(e) to
apply. Perrin did raise this argument at sentencing, so we review
the district court’s conclusion de novo. Howard, 742 F.3d at 1341.
The Sixth Amendment guarantees the right to a jury trial for
facts—other than a prior conviction—that could increase a defend-
ant’s sentence. Jones v. United States, 526 U.S. 227, 243 n.6 (1999).
And even as to prior convictions, the district court may not use ar-
rest reports or probable-cause affidavits from prior state convic-
tions to make factual findings about a defendant’s conduct under-
lying those convictions. Shepard, 544 U.S. at 16. Instead, the district
court is limited to using documents that reflect either (1) a jury de-
termination of or (2) a defendant’s admission to prior criminal con-
duct: “the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the defend-
ant, or to some comparable judicial record of this information.” Id.
at 26. The district court may also use Shepard documents to deter-
mine whether a defendant’s prior offenses were committed on dif-
ferent occasions for purposes of applying section 924(e). See United
States v. Sneed, 600 F.3d 1326, 1332–33 (11th Cir. 2010).
In reviewing the Shepard documents in this record, we agree
the district court did not err in finding that Perrin’s convictions
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20-12558 Opinion of the Court 7
occurred on different occasions. Here is what the Shepard docu-
ments show: Perrin sold or delivered cocaine in 2006. He commit-
ted aggravated assault on May 21, 2013, by threatening to fire a pel-
let gun at his victim. And he committed another aggravated assault
three days later by threatening to use a knife against a different vic-
tim. Under Wooden v. United States, it is clear that these offenses all
occurred on different occasions. See 595 U.S. 360, 369 (2022) (“Of-
fenses committed close in time, in an uninterrupted course of con-
duct, will often count as part of one occasion; not so offenses sepa-
rated by substantial gaps in time or significant intervening
events.”). No illicit factfinding was necessary for the district court
to conclude that section 924(e) applied to Perrin here.
Perrin responds that two more recent Supreme Court cases
prohibit district courts from using anything but the elements of a
charged offense or direct admissions by a defendant to determine
any fact about the offense—including the date on which it was
committed. Cf. Descamps v. United States, 570 U.S. 254, 261 (2013)
(prohibiting judicial inquiry into specific offense conduct to deter-
mine whether a defendant’s actions fell within the generic defini-
tion of an offense under the Armed Career Criminal Act); cf. also
Mathis v. United States, 579 U.S. 500, 511–12 (2016) (holding that, in
determining a sentence under the Armed Career Criminal Act, a
district court “can do no more, consistent with the Sixth Amend-
ment, than determine what crime, with what elements, the defend-
ant was convicted of”). But, post-Descamps and Mathis, we have
reaffirmed our holding that “[a]s long as a court limits itself to Shep-
ard-approved sources, [it] may determine both the existence of
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8 Opinion of the Court 20-12558
prior convictions and the factual nature of those convictions, in-
cluding whether they were committed on different occasions,
based on its own factual findings.” United States v. Dudley, 5 F.4th
1249, 1259–60 (11th Cir. 2021) (quotations omitted); see also United
States v. Longoria, 874 F.3d 1278, 1283 (11th Cir. 2017) (explaining
that “district courts may determine both the existence of prior con-
victions 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” (quotation
omitted)).
As we explained in Dudley, Perrin’s “reliance on Descamps
and Mathis is misplaced. . . . Both Descamps and Mathis concerned
when a district court may apply the modified categorical approach
to ascertain whether a conviction qualifies as an ACCA violent fel-
ony predicate—an inquiry not at issue here. Neither case addressed
the second inquiry required by the ACCA—whether the qualifying
violent offenses were committed on different occasions from one
another. Therefore, Descamps and Mathis have no bearing on this
case.” Dudley, 5 F.4th at 1264–65 (citations omitted).
C.
Finally, Perrin argues that his enhanced sentence under sec-
tion 924(e) is unconstitutional under the Fifth and Sixth Amend-
ments because its elements—his three qualifying convictions that
stemmed from different occasions—were not alleged in the super-
seding information. As with Perrin’s first argument, we review for
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20-12558 Opinion of the Court 9
plain error because he raises it for the first time on appeal. See Har-
ris, 741 F.3d at 1248.
The district court did not err because we have held that the
Constitution does not require either prior convictions or their oc-
currence on different occasions to be alleged in an indictment or
proven beyond a reasonable doubt. See United States v. Overstreet,
713 F.3d 627, 631–32 (11th Cir. 2013) (rejecting the exact argument
Perrin makes here). Perrin never cites or discusses Overstreet, but
it remains the law all the same. The district court thus didn’t err—
plainly or otherwise—in sentencing Perrin as an armed career
criminal, even though the language in the superseding indictment
didn’t track the elements of section 924(e).
AFFIRMED.
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