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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14414
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20018-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD DELANEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 22, 2016)
Before TJOFLAT, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Reginald Delaney appeals his sentence of 188 months of imprisonment,
imposed after he pled guilty to conspiracy to import at least 500 grams of cocaine,
in violation of 21 U.S.C. § 952(a). According to the factual proffer in Delaney’s
plea agreement, Delaney and a co-defendant traveled to Colombia, purchased
cocaine, and then shipped it back to the United States. On appeal, Delaney
challenges his sentence on three grounds: (1) the district court erred in sentencing
him as a career offender, under United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 4B1.1(a); (2) the court erred in denying him a minor-role reduction
under U.S.S.G. § 3B1.2(b); and (3) his sentence is unreasonable because the court
failed to meaningfully consider the § 3553(a) factors or adequately explain its
sentence. After careful review, we affirm Delaney’s sentence.
I.
Delaney first challenges his designation as a career offender under the
Sentencing Guidelines. He challenges this designation on three grounds: (1) his
South Carolina conviction for second-degree lynching did not qualify as a crime of
violence; (2) the record is unclear which prior convictions the district court used to
qualify him as a career offender, so remand is warranted; and (3) his prior
convictions do not count as separate predicate offenses because he was sentenced
for these offenses on the same day.
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We review de novo whether a prior conviction qualifies as a predicate
offense under the career-offender guideline. United States v. Chitwood, 676 F.3d
971, 975 (11th Cir. 2012). We may affirm a district court’s sentencing decision for
any reason supported by the record, even if the reason was not relied upon by the
district court. Id.
A “career offender” is subject to increased penalties under the Sentencing
Guidelines. Generally, career-offender status increases both a defendant’s base
offense level—Delaney’s base offense level rose from 26 to 34—and his criminal-
history category, which becomes the highest category (VI) in every case. U.S.S.G.
§ 4B1.1(b)(2). With the career-offender enhancement, and after a reduction for
acceptance of responsibility, Delaney’s total offense level was 31, and his advisory
guideline sentencing range was 188 to 235 months of imprisonment.
A defendant is a career offender under § 4B1.1 if (1) he was at least eighteen
when he committed the instant offense, (2) the instant offense is a felony crime of
violence or controlled substance offense; and (3) he has “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). Only the third requirement is at issue in this case.
The term “crime of violence” includes an offense that “has as an element,
the use, attempted use, or threatened use of physical force against the person of
another.” Id. § 4B1.2(a). A “controlled substance offense” means an offense “that
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prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance . . . or the possession of a controlled substance with intent to
manufacture, import, export, distribute, or dispense.” Id. § 4B1.2(b).
At sentencing, the government relied on three prior convictions to prove
Delaney’s status as a career offender: two convictions for possession with intent to
distribute crack cocaine, in violation of S.C. Code Ann. § 44–53–375(B)(1); and
one conviction for second-degree lynching, in violation of S.C. Code Ann. § 16–3–
220 (2003) (repealed 2010). Delaney objected to one of the crack-cocaine
convictions because, he argued, it was actually a misdemeanor offense based on
the small quantity of crack he possessed. As for the other crack-cocaine
conviction, Delaney did not contest its status as a predicate offense, but instead
lodged a “record objection” that the government had not introduced a certified
copy of the judgment. Nonetheless, after the government introduced a non-
certified judgment, Delaney’s counsel submitted to the court a certified version.
Regarding the lynching conviction, Delaney contended that the offense did not
qualify as a crime of violence because the state-court judgment reflected that the
offense was “non-violent.” The district court ultimately concluded that Delaney
had at least two predicate convictions for purposes of the career-offender
guideline.
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We first address Delaney’s contention that his second-degree lynching
conviction does not qualify as a crime of violence. The first step in determining
whether a conviction qualifies as a crime of violence under U.S.S.G. § 4B1.2 is to
analyze the statute of conviction under the “categorical approach.” United States
v. Estrella, 758 F.3d 1239, 1244 (11th Cir. 2014). Under this approach, we look
no further than the elements of the offense. Id. If the statute necessarily requires
the government to prove as an element of the offense the use, attempted use, or
threatened use of physical force, then the offense categorically qualifies as a crime
of violence. Id. at 1244-45.
In a “narrow range of cases,” the “modified categorical approach” permits
courts to look beyond the words of the statute and rely on a limited set of
documents, such as charging papers, jury instructions, or plea agreements, to
determine whether an offense qualifies as a crime of violence. Id. at 1245. The
U.S. Supreme Court has now made clear that the modified categorical approach
comes into play only when the statute at issue is “divisible”—that is, when it “sets
out one or more elements of the offense in the alternative.” Descamps v. United
States, ___ U.S. ___, ___, 133 S. Ct. 2276, 2281 (2013); see Estrella, 758 F.3d at
1245. For example, a burglary statute criminalizing entry into “boats, cars, and
buildings” is divisible in that the offense can be committed in alternative ways—by
entry into a boat, car, or building, respectively. Still, though, the modified
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categorical approach is an “elements-based” one, focused on discovering “which
statutory phrase, contained within a statute listing several different crimes,” was
the basis for a prior conviction. See Descamps, 133 S. Ct. at 2285 (internal
quotation marks omitted).
When Delaney was convicted in 2001, second-degree lynching, a felony,
was defined as “[a]ny act of violence inflicted by a mob upon the body of another
person and from which death does not result.” S.C. Code. Ann. § 16–3–220 (2003)
(repealed 2010); State v. Smith, 572 S.E.2d 473, 475 (S.C. Ct. App. 2002). The
government contends that the offense categorically qualifies as a crime of violence
because the statute has as an element of the offense the use of physical force (an
“act of violence”) against the person of another (“upon the body of another
person”). See U.S.S.G. § 4B1.2(a); see also Johnson v. United States, 559 U.S.
133, 140, 130 S. Ct. 1265, 1271 (2010) (“[T]he phrase ‘physical force’ means
violent force—that is, force capable of causing physical pain or injury to another
person.”). We agree.
While the South Carolina legislature does not define the term “act of
violence,” the South Carolina Court of Appeals has indicated that the term is
synonymous with an act capable of causing bodily harm. See State v. Prince, 517
S.E.2d 229, 232-34 (S.C. Ct. App. 1999) (holding that “act of violence” in an
aggravated stalking statute encompasses fear-inducing behavior accompanied by
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property damage, as well “fear-inducing behavior accompanied by bodily injury”
(emphasis added)). That the legislature used the term “act of violence” rather than
“battery” to describe the proscribed conduct further indicates that physical force
capable of causing bodily injury is required. 1 Cf. Johnson, 559 U.S. at 139-42, 130
S. Ct. at 1270-72 (holding that a Florida battery statute did not categorically
require “physical force” because the statute could be violated with mere “offensive
touching”). Accordingly, Delaney’s prior conviction for second-degree lynching
qualifies as a crime of violence because the statute of conviction categorically
required proof of an element involving the use of physical force against the person
of another. See Estrella, 758 F.3d at 1244-45; U.S.S.G. § 4B1.2(a).
Delaney does not dispute that he was convicted of § 16–3–220 or that the
offense had as an element the use of physical force against another. Instead, he
argues that we should apply the modified categorical approach and look to the
state-court judgment, which states that the offense was “non-violent.” However,
the modified categorical approach is inapplicable in this case because the second-
degree-lynching statute is not divisible. See Estrella, 758 F.3d at 1245. It does not
set out one or more elements of the offense in the alternative. Therefore, the
1
This conclusion is also supported by subsequent actions of the South Carolina
legislature. In 2010, the crime of second-degree lynching was repealed and replaced by the
crime of “assault and battery by mob.” See S.C. Code Ann. § 16–3–210. Regardless of the
degree of offense, the crime of assault and battery by mob requires that the “act of violence . . .
results in” bodily injury to the person. Id. § 16–3–210(B)-(D).
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district court properly did not rely on the state-court judgment’s designation of the
crime as “non-violent.”
In any case, we are not bound by the label a state attaches to an offense or
even by how the state treats the offense for state sentencing purposes under an
analogous sentencing scheme. See Estrella, 758 F.3d at 1249 n.4. While we are
bound by state-court opinions regarding the elements of a criminal offense,
whether those elements create a crime of violence under the federal Sentencing
Guidelines is a question of federal law. Id. Here, the state court’s designation of
the offense as “non-violent,” apparently for state sentencing purposes, does not
determine whether the offense’s elements create a crime of violence under the
federal Sentencing Guidelines. Moreover, the judgment still reflects that Delaney
was convicted of § 16–3–220, and Delaney does not assert that the statute—
whatever the judgment may say—sets out an alternative, non-violent way to
commit the offense. Thus, the state-court judgment does not change our
conclusion that Delaney’s prior conviction for second-degree lynching qualified as
a crime of violence.
Delaney next claims that it is unclear which convictions the court ultimately
relied upon and that this ambiguity requires resentencing. We disagree. The
government proffered three convictions at sentencing to show that Delaney was a
career offender, and the district court, after hearing Delaney’s objections, stated
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that it was “satisfied with the two.” We know that one of the convictions the court
relied upon was the lynching conviction, because the court ruled it a crime of
violence. That leaves the two crack-cocaine convictions. One was vigorously
challenged by Delaney’s counsel, and the court did not issue a ruling as to that
conviction. As for the other, Delaney’s only objection was that the government
had not introduced a certified copy of the judgment, but Delaney’s counsel
effectively resolved that objection by introducing a certified copy after the
government entered a non-certified version. 2 Accordingly, we can reasonably infer
that the court relied on the lynching conviction and the crack-cocaine conviction as
to which there was, in counsel’s words, only a “record objection.”3 And because
Delaney has presented no argument that this latter crack-cocaine conviction does
not qualify as a controlled substance offense, he has abandoned any argument that
2
We note that a certified copy of a conviction is not required for a sentencing court to
make a proper finding that such conviction in fact exists, even if it may be “the best approach.”
United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999).
3
Delaney did not object at sentencing that he could not discern on which convictions the
district court relied. Had he done so and had the district court refused to identify on which
convictions it relied, that would have been error. Title 18, United States Code, Section 3553(c)
requires a sentencing court to “state in open court the reasons for its imposition of the particular
sentence.” Under this provision, a defendant is entitled to know the specific convictions on
which an ACCA enhancement is recommended and imposed. To hold otherwise would raise
serious due-process concerns. Cf. Oyler v. Boles, 368 U.S. 448, 452, 82 S. Ct. 501 (1962) (“[A]
defendant must receive reasonable notice and an opportunity to be heard relative to [a] recidivist
charge even if due process does not require that notice be given prior to the trial on the
substantive offense.”); United States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000) (“It is settled
that due process requires that a defendant have notice and an opportunity to contest the validity
or applicability of the prior convictions upon which a statutory sentencing enhancement is
based.”). But here, Delaney did not object, and, in any case, it is obvious from the record on
which convictions the district court relied.
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the district court erred on this point.4 See United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003) (issues not raised on appeal are deemed
abandoned).
Delaney also argues that all of the offenses at issue should be treated as a
single offense under the Sentencing Guidelines because he was sentenced, pursuant
to a negotiated plea deal, to a nine-year aggregate term for these offenses on the
same day in January 2001. For the career-offender provision to apply, the
sentences for at least two predicate convictions must be counted separately as a
“prior sentence” for purposes of calculating a defendant’s criminal-history score.
U.S.S.G. §§ 4B1.2(c), 4A1.1(a)–(c). Sentences are always counted separately if
they were imposed for offenses separated by an “intervening arrest.” Id.
§ 4A1.2(a)(2). “If there is no intervening arrest,” prior sentences are counted
separately unless the underlying offenses were charged together or “the sentences
were imposed on the same day.” Id.
Here, Delaney’s offenses were separated by intervening arrests, which he
does not dispute, so the district court properly treated them as separate prior
sentences. See id. Because the sentences were separated by an intervening arrest,
it is immaterial that the sentences were imposed on the same day.
4
Even if we did find the record ambiguous, that ambiguity would not require remand
because we may affirm the district court’s career-offender determinations for any reason
supported by the record. See Chitwood, 676 F.3d at 975.
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Delaney argues that the “intervening arrest” standard does not apply because
the version of the Guidelines Manual in effect when Delaney was convicted in
state court in 2001 did not include that language. However, a sentencing court
must use the Guidelines Manual in effect on the date the defendant is sentenced,
unless application of the Guidelines Manual in effect at sentencing would violate
the Constitution’s Ex Post Facto Clause. U.S.S.G. § 1B1.11; see Peugh v. United
States, 569 U.S. ___, ___, 133 S. Ct. 2072, 2081 (2013). Delaney makes no claim
that the court committed an ex post facto violation by using the “intervening arrest”
standard. Cf. United States v. Reynolds, 215 F.3d 1210, 1213 (11th Cir. 2000)
(holding that the use of prior felony predicates to enhance a sentence under the
Armed Career Criminal Act, even when the convictions occurred before the
effective date of the ACCA, does not violate the Ex Post Facto Clause). Nor could
he. The crime for which the district court sentenced him occurred in 2013, well
after the “intervening arrest” standard of the Guidelines Manual came into effect.
As a result, Delaney had the ability to know, when he committed the crime for
which he was sentenced in this case, that his prior convictions would be subject to
the “intervening arrest” standard.
In sum, we conclude that the district court did not err in sentencing Delaney
as a career offender under § 4B1.1.
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II.
Delaney next argues that he should have been granted a reduction in his
offense level for having a minor role in the offense, pursuant to U.S.S.G.
§ 3B1.2(b). However, minor-role adjustments under § 3B1.2(b) are not available
to defendants sentenced under § 4B1.1, the career-offender guideline. United
States v. Jeter, 329 F.3d 1229, 1230 (11th Cir. 2003). Because Delaney was
properly sentenced as a career offender under § 4B1.1, as discussed above, he is
ineligible to receive a minor-role adjustment under § 3B1.2(b).
III.
Finally, Delaney challenges the reasonableness of his sentence, arguing that
the court did not “meaningfully or adequately” consider the 18 U.S.C. § 3553(a)
sentencing factors or adequately explain its chosen sentence. Delaney specifically
contends that the court failed to consider mitigating evidence, such as Delaney’s
alcohol and substance abuse and the age of his prior convictions.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. United States v. Moran, 778 F.3d 942, 982 (11th Cir. 2015).
In reviewing for reasonableness, we “must first ensure that the district court
committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
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erroneous facts, or failing to adequately explain the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). In general, the district
court’s explanation must be sufficient to show that the court “considered the
parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal
decisionmaking authority.” United States v. Ghertler, 605 F.3d 1256, 1262 (11th
Cir. 2010) (internal quotation marks omitted). The court need not specifically
discuss each § 3553(a) factor so long as the record reflects that the court
considered those factors. Id.
Assuming the district court’s decision is procedurally sound, we will then
review a sentence for substantive reasonableness under the totality of the
circumstances. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). “A
sentence is substantively unreasonable if it does not achieve the purposes of
sentencing stated in § 3553(a)[,]” Moran, 778 F.3d at 982 (internal quotation
marks omitted), which include the need to reflect the seriousness of the offense,
deter criminal conduct, and protect the public from the defendant’s future criminal
conduct, see 18 U.S.C. § 3553(a)(2).5 The party challenging the sentence bears the
burden of proving that his sentence is unreasonable. Moran, 778 F.3d at 982.
5
The district court must also take into account the nature and circumstances of the
offense, the history and characteristics of the defendant, the kinds of sentences available, the
applicable guideline range, any pertinent policy statements, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1),
(3)-(7).
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Here, Delaney has not shown that the district court’s sentence was
procedurally unreasonable. At the sentencing hearing, the court listened to the
parties’ arguments regarding an appropriate sentence, as well as to Delaney’s
personal statement to the court, which Delaney highlights in his brief on appeal.
Then, in imposing sentencing, the court stated that it had considered the § 3553(a)
factors, the statements of the parties, and the PSR. This is sufficient to show that
the court adequately considered the § 3553(a) factors. See United States v. Scott,
426 F.3d 1324, 1329-30 (11th Cir. 2005) (holding that it is generally sufficient for
the court to “explicitly acknowledge[] that it had considered [the defendant’s]
arguments at sentencing and that it had considered the factors set forth in
§ 3553(a)”). The district court also adequately explained its sentence. The court
specifically discussed the extent of Delaney’s criminal history and commented on
the seriousness of his prior offenses, and it explained that its low-end sentence was
sufficient to deter further recidivism. The court also agreed to recommend him for
a drug-treatment program while incarcerated. Overall, the court’s explanation was
sufficient to show that the court “considered the parties’ arguments and ha[d] a
reasoned basis” for sentencing Delaney to 188 months of imprisonment. See
Ghertler, 605 F.3d at 1262; see also Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Accordingly, Delaney’s sentence was procedurally reasonable.
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Delaney does not argue that his sentence, at the low end of his guideline
range, is substantively unreasonable. Therefore, we affirm Delaney’s sentence as
reasonable.
IV.
In conclusion, the district court did not err in sentencing Delaney as a career
offender under U.S.S.G. § 4B1.1. As a career offender, Delaney was not eligible
for a minor-role reduction under U.S.S.G. § 3B1.2(b). Finally, the district court
did not procedurally err in sentencing Delaney.
AFFIRMED.
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