United States v. Ronald Brunson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11107 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 17, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20481-WHM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONALD BRUNSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(January 17, 2012)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

A jury found Ronald Brunson guilty of being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(d)(1), and the district court
sentenced him under the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. §

924(e), to a prison term of 180 months. Brunson now appeals his conviction and

sentence. Regarding his conviction, he seeks (1) a judgment of acquittal on the

ground that the evidence was insufficient to convict, and, alternatively, (2) a new

trial on the ground that a juror was seated using improper procedure. He

challenges his sentence on the ground that the record did not establish his

eligibility for sentencing under the ACCA. We affirm.

A district court must grant a “judgment of acquittal of any offense for which

the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). We

review de novo the sufficiency of evidence to support a conviction. United States

v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). In doing this, we take the evidence

in the light most favorable to the Government and accept all reasonable inferences

in favor of the jury's verdict. United States v. Chirinos, 112 F.3d 1089, 1095 (11th

Cir. 1997). A conviction is due to be affirmed if any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. United

States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999).

The record of the Brunson’s trial indicates that the jury had a considerable

amount of evidence before it on which to convict. This evidence included direct

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eyewitness testimony from police officers who observed Brunson carrying a

firearm and retrieved it from a sofa where he had hid it. Accordingly, it is clear

that Brunson is not entitled to an acquittal.

II.

The only method by which a person accused of a federal crime can

challenge a jury on the ground that it was not selected in conformity with the law

is detailed in 28 U.S.C. § 1867. 28 U.S.C. § 1867(e). A defendant can move to

stay proceedings or dismiss the indictment against him on the ground of

substantial failure to comply with the appropriate provisions. 28 U.S.C. § 1867(a).

A juror is not qualified if: (1) not a citizen of the United States over the age of 18;

(2) unable to read, write, and understand the English language; (3) unable to speak

the English language; (4) incapable to render satisfactory service by reason of

mental or physical infirmity; or (5) convicted in or facing pending charges in state

or federal court punishable by imprisonment for more than one year and civil

rights have not been restored. 28 U.S.C. § 1865(b). When jurors are needed,

those qualified should be drawn at random. 28 U.S.C. § 1866(a). No person or

class can be disqualified, subject to certain exceptions. 28 U.S.C. § 1866(c). If

there is a shortage, additional jurors can be summoned in any manner ordered by

the court that is not discriminatory. 28 U.S.C. § 1866(f).

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In United States v. Maldonado, 849 F.2d 522 (11th Cir. 1988), U.S.

Marshals fulfilled a request for additional jurors by selecting 16 people working or

otherwise present in the federal building. Id. at 523. Of those 16 people, one

eventually was seated on the jury for trial. Id. After a review of the facts, we

found that because there was no showing that any noncompliance deprived

Maldonado of a fair possibility of obtaining a truly representative cross section,

there was no prejudice. Id.

Here, a person with a name similar to the person summoned showed up and

was seated on the jury. The record shows that all the provisions of jury selection

were substantially complied with. A qualified juror was selected, subjected to voir

dire, accepted by both parties, and seated on the jury. There is no indication that

the juror selected deprived Brunson of a fair trial or a truly representative cross

section of the community. Consequently, the court did not abuse its discretion in

refusing to set aside the jury’s verdict and grant Brunson a new trial.

III.

When appropriate, we review sentencing issues not raised before the district

court only for plain error. United States v. Barrington, 648 F.3d 1178, 1195 (11th

Cir. 2011). That is, we may correct an error, at our discretion, where (1) an error

occurred; (2) the error was plain; and (3) the error affects substantial rights.

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United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-79, 123

L.E.2d 508 (1993). When these three factors are met, we may exercise discretion

and correct the error if it “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. at 736, 113 S.Ct. at 1779.

The ACCA requires the court to impose a sentence of at least 15 years if a

defendant has three previous convictions for violent felonies or serious drug

offenses. 18 U.S.C. § 924(e)(1). Brunson argues that one of his previous

convictions did not qualify as an ACCA predicate offense; therefore, his 180

months’ sentence is invalid and should be vacated. Because Brunson did not

present this argument to the district court, we assess his objection to the

challenged conviction under the plain error standard.

The conviction at issue is a Florida state court conviction for a drug offense.

The presentence report (“PSR”) identified the conviction as “Cocaine Sell Deliver

Possess with Intent.” Brunson contends that there was no such conviction because

the state court judgment reveals the conviction as a violation of Fla. Stat. §

893.13(1)(A)(1), a non-existent the statute, rather than Fla. Stat. § 893.13(1)(a)(1).

In other words, the judgment should have cited § 893.13(1)(a)(1) as the basis for

the conviction.

As noted above, the PSR stated that Brunson was convicted of “Cocaine

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Sell Deliver Possess with Intent.” Brunson did not object to this statement, which

coincides with Fla. Stat. § 893.13(1)(a)(1); hence, by not objecting, he waived the

PSR’s classification of the conviction as a serious drug offense. Brunson also

argues that the court committed plain error in using the conviction because the

state court judgment’s use of “(A)” instead of “(a)” in citing the statute rendered

the judgement unconstitutional. Had Brunson presented the argument to the

district court and the court rejected it, the court would not have erred because a

defendant may not collaterally attack in a federal sentencing proceeding under the

ACCA a state court conviction on a constitutional ground unless the conviction

was obtained in violation of his right to counsel, Custis v. United States, 511 U.S.

485, 487, 114 S.Ct. 1732, 1734, 128 L.Ed.2d 517 (1994), and Brunson does not

argue that he was convicted in derogation of that right.

AFFIRMED.