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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13945
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20383-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 22, 2018)
Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges.
PER CURIAM:
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Timothy Smith appeals the partial denial of his motion to vacate his
sentence. 28 U.S.C. § 2255. The district court vacated Smith’s sentence of 180
months of imprisonment under the Armed Career Criminal Act on the ground that
his prior conviction for attempted manslaughter no longer qualified as a crime of
violence after Johnson v. United States, 135 S. Ct. 2551 (2015), but it rejected a
similar challenge to Smith’s prior conviction for armed robbery as foreclosed by
United States v. Fritts, 841 F.3d 937 (11th Cir. 2016). Smith argues that his newly-
imposed sentence of 108 months of imprisonment under the Sentencing Guidelines
is procedurally and substantively unreasonable. Smith also argues, for the first time
on appeal, that he did not receive notice “that 18 U.S.C. § 924(a) was going to be
used to calculate his offense level,” in violation of his right to due process under
the Fifth Amendment. We affirm.
We review the reasonableness of a sentence under a deferential standard for
abuse of discretion. United States v. Azmat, 805 F.3d 1018, 1047 (11th Cir. 2010).
We review whether the district court committed a procedural error, such as failing
to calculate the guideline range or to explain the chosen sentence, and then we
examine whether the sentence is substantively reasonable. Gall v. United States,
552 U.S. 38, 51 (2007). “When a party raises an argument for the first time on
appeal, this Court reviews for plain error.” United States v. Lange, 862 F.3d 1290,
1293 (11th Cir.), cert. denied, 138 S. Ct. 488 (2017). To prevail under that
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standard, the defendant must prove that an error occurred that is plain and that
affects his substantial rights. Id.
The district court did not procedurally err by counting Smith’s prior
conviction for armed robbery as a predicate offense when determining his base
offense level under the Guidelines. As Smith concedes, his prior conviction for
armed robbery, Fla. Stat. § 812.13(2), qualifies categorically as a crime of violence
under Fritts. 841 F.3d at 939–42 (discussing United States v. Dowd, 451 F.3d 1244
(11th Cir. 2006), and United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011));
United States v. Seabrooks, 839 F.3d 1326, 1338–45 (11th Cir. 2016). Fritts “is the
law of this Circuit[ and] . . . bind[s] all subsequent panels unless and until the . . .
holding is overruled by the Court sitting en banc or by the Supreme Court.”
Seabrooks, 839 F.3d at 1341 (quoting Smith v. GTE Corp., 236 F.3d 1292, 1300
n.8 (11th Cir. 2001)). Because Smith possessed a Romarm Cugir semiautomatic
rifle that “is capable of accepting a large capacity magazine . . . and [he has] at
least [one] felony conviction[] of . . . a crime of violence [and of] a controlled
substance offense,” the district court correctly calculated Smith’s sentencing range
using a base offense level of 26. See United Sentencing Guidelines Manual
§ 2K2.1(a)(1) (Nov. 2016).
Smith asks us to stay his appeal until the Supreme Court issues its decision
in Stokeling v. United States, 138 S. Ct. 1438 (2018), but a stay is not appropriate.
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We remain bound by our precedent in Fritts despite the grant of certiorari in
Stokeling, which involves an unarmed robbery. “Until the Supreme Court issues a
decision that actually changes the law, we are duty-bound to apply this Court’s
precedent” that forecloses Smith’s challenge to his sentence. See Gissendaner v.
Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015). Smith also
argues in his reply brief that his conviction for attempted second degree murder
does not qualify as a crime of violence, but we decline to address an argument that
Smith omitted from his initial brief. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d
1338, 1342 (11th Cir. 2005).
The district court also did not abuse its discretion by varying below Smith’s
advisory guideline range to impose a sentence of 108 months of imprisonment.
Smith pleaded guilty to being a felon in possession of a firearm and, as the district
court found, Smith had an “extensive criminal history” with convictions for
attempted manslaughter, aggravated battery of a pregnant victim, battery,
possession with intent to sell or deliver cocaine, attempted second degree murder
with a deadly weapon, and armed robbery with a firearm. The district court also
was entitled to consider other misconduct charged in Smith’s indictment, to which
he admitted by “fail[ing] to object to [the] allegations of fact in [his presentence
report],” United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006), that he sold
thousands of dollars in illegal drugs and nine firearms to undercover federal agents.
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See 18 U.S.C. § 3661 (“No limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence.”). The district court considered
Smith’s argument for leniency based on “the statutory [sentencing] factors” and
“the presentence report,” which described Smith’s adolescent struggle with
hyperactivity, a sexual assault he suffered in prison, and his completion of
educational courses. See 18 U.S.C. § 3553(a). The district court also considered as
“important factor[s]” that Smith “complet[ed] . . . the Anger Management
Program, . . . [and] receiv[ed] [an] HVAC certification.” And the district court
rewarded Smith for his “steps forward . . . in prison” by varying downward and
sentencing him to a term two months below the low end of his advisory guideline
range of 110 to 120 months. Smith’s sentence, which is well below his maximum
statutory sentence of 10 years of imprisonment, is substantively reasonable.
Smith argues, for the first time, that he was denied due process because his
indictment failed to allege that section 924(a) would “be used . . . to calculate his
offense level” at resentencing, but an indictment “need not set forth factors
relevant only to the sentencing of an offender found guilty of the charged crime,”
Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998). After Smith
succeeded in having his sentence as an armed career criminal vacated, his plea of
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guilty to possessing a firearm as a felon exposed him to a statutory sentence in
prison for up to 10 years. See 18 U.S.C. §§ 922(g), 924(a)(2); Welch v. United
States, 136 S. Ct. 1257, 1261 (2016). Smith requested a sentence less than the
statutory maximum and received the relief that he sought. The district court
committed no error, much less plain error, by using section 924(a) to calculate
Smith’s offense level.
We AFFIRM Smith’s sentence.
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