USA v. Danny Lee Hampton

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 17-15276
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY LEE HAMPTON,
a.k.a. “Smoke”,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:16-cr-00234-ACC-KRS-1
USCA11 Case: 17-15276 Document: 46-1 Date Filed: 12/05/2023 Page: 1 of 5

-- 1 of 5 --

2 Opinion of the Court 17-15276
____________________
Before L AGOA, BRASHER , and A BUDU , Circuit Judges.
PER CURIAM:
Danny Lee Hampton pleaded guilty to conspiracy to dis-
tribute and possess with intent to distribute a controlled sub-
stance, see 21 U.S.C. § 846, and possession of a firearm by a con-
victed felon, see 18 U.S.C. § 922(g). The district court sentenced
him to ninety months’ imprisonment to be followed by four years
of supervised release. En route to imposing that sentence, the dis-
trict court concluded that Hampton was an armed career criminal
under 18 U.S.C. § 924(e) based on three prior state law convic-
tions for “serious drug offense[s]”: one for possession with intent
to sell or deliver cocaine; one for delivery of cocaine; and one for
conspiracy to traffic cocaine.
On appeal, Hampton says his state law conspiracy convic-
tion is not a “serious drug offense” for purposes of Section 924(e)
and he, therefore, did not deserve to be sentenced as an armed
career criminal. He advances three arguments in support of that
proposition: (1) conspiracy to traffic is not a serious drug offense
because it does not require intent to distribute as an element of
the crime; (2) his conspiracy conviction is not a serious drug of-
fense because it did not involve a substance that was federally
controlled at the time he committed the federal offense for which
USCA11 Case: 17-15276 Document: 46-1 Date Filed: 12/05/2023 Page: 2 of 5

-- 2 of 5 --

17-15276 Opinion of the Court 3
he was federally sentenced;1 and (3) a mere conspiracy to sell or
deliver cocaine can never be considered a serious drug offense.
Hampton concedes that our decisions in United States v. James, 430
F.3d 1150 (11th Cir. 2005), overruled on other grounds by Johnson v.
United States, 576 U.S. 591 (2015), and United States v. Jackson, 55
F.4th 846 (11th Cir. 2022), require us to reject his first and second
arguments, respectively.
Hampton’s third argument is not foreclosed by Circuit
precedent, but it is foreclosed by his own forfeiture. He posits two
reasons in this Court that a conspiracy conviction cannot be a se-
rious drug offense: because a mere agreement to traffic a con-
trolled substance does not “involv[e] . . . manufacturing, distrib-
uting, or possessing with intent to manufacture or distribute,” nor
does it “involv[e]” the existence of an actual controlled substance.
18 U.S.C. § 924(e)(2)(A)(ii). In sum, Hampton’s point is that until
an actual controlled substance is in fact “manufacture[d], dis-
tribut[ed], or possess[ed] with intent to manufacture or distrib-
ute,” no “serious drug offense” has occurred under Section 924(e).
But Hampton never made those arguments to the district court.
Instead, those arguments were debuted in his opening brief in this
Court. We have made clear that a defendant who wants to pre-
serve a specific argument for appeal must make that argument to
the district court at sentencing. E.g., United States v. Ramirez-Flores,
1 Hampton contends that his state law conviction was “based on a derivative
of cocaine—ioflupane—that was not federally controlled” when he commit-
ted the federal crimes underlying the sentence at issue in this appeal.
USCA11 Case: 17-15276 Document: 46-1 Date Filed: 12/05/2023 Page: 3 of 5

-- 3 of 5 --

4 Opinion of the Court 17-15276
743 F.3d 816, 821 (11th Cir. 2014). Because Hampton failed to do
so, we review only for plain error the district court’s conclusion
that Hampton’s state law conspiracy conviction is a serious drug
offense.
Plain error review requires Hampton to persuade us that:
“(1) an error occurred; (2) the error was plain; (3) it affected his
substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings.” Id. Even if the district court did err below,
the error was certainly not plain. “An error is plain if it is clear or
obvious—that is, if the explicit language of a statute or rule or
precedent from the Supreme Court or this Court directly resolves
the issue.” United States v. Innocent, 977 F.3d 1077, 1081 (11th Cir.
2020) (cleaned up). There was no binding precedent from this
Court or the Supreme Court instructing the district court that
conspiracies are never serious drug offenses for purposes of Sec-
tion 924(e). Indeed, we recently declined to decide “whether and
to what extent inchoate crimes”—including conspiracies, specifi-
cally—“are ‘serious drug offense[s].’” United States v. Penn, 63
F.4th 1305, 1316 (11th Cir. 2023) (brackets in original) (quoting 18
U.S.C. § 924(e)(2)(A)).
Hampton contends that a more recent decision, United
States v. Miles, 75 F.4th 1213 (11th Cir. 2023), settled the matter.
See Henderson v. United States, 568 U.S. 266, 268–29 (2013) (an error
can be “plain” even if the precedent resolving the issue came after
the district court’s decision). Hampton is wrong. In Miles, we held
that a possession conviction under a certain Florida statute was
USCA11 Case: 17-15276 Document: 46-1 Date Filed: 12/05/2023 Page: 4 of 5

-- 4 of 5 --

17-15276 Opinion of the Court 5
not a serious drug offense because it did not “involve[e] manufac-
turing . . . .” 75 F.4th at 1215–16. The question that Penn dodged—
“whether and to what extent” a conspiracy conviction can ever be
a “serious drug offense[]” under Section 924(e)—remains open. 63
F.4th 1316–17. Absent precedent conclusively answering that
question, any error by the district court was not “plain.”
Accordingly, the district court is AFFIRMED.
USCA11 Case: 17-15276 Document: 46-1 Date Filed: 12/05/2023 Page: 5 of 5

-- 5 of 5 --