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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13645
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUINTON DEAIRRE GARDNER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 7:18-cr-00517-ACA-JHE-1
____________________
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2 Opinion of the Court 20-13645
Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.
HULL, Circuit Judge:
After pleading guilty, Quinton Deairre Gardner appeals his
180-month sentence for possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
district court concluded that Gardner qualified for an enhanced
sentence under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), because he had at least three prior “serious drug
offenses.” Namely, Gardner had three separate Alabama
convictions for first-degree unlawful possession of marijuana for
other than personal use and a conviction for unlawful distribution
of a controlled substance.
To count as a “serious drug offense” under the ACCA, the
drug offenses must have a “maximum term of imprisonment of ten
years or more . . . prescribed by law.” See 18 U.S.C.
§ 924(e)(2)(A)(ii). Alabama’s statutory maximum penalties for each
of Gardner’s drug offenses was ten years or more. On appeal,
Gardner argues the “maximum term of imprisonment” is not the
“statutory maximum” penalty but instead the high end of the
particular sentencing range calculated for his prior convictions
under Alabama’s presumptive sentencing standards. Because we
apply the categorical approach, we look to the maximum statutory
sentence for Gardner’s drug offenses, not to the high end of his
presumptive sentencing range. Therefore, we affirm Gardner’s
ACCA-enhanced sentence.
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20-13645 Opinion of the Court 3
I. BACKGROUND FACTS
A. Offense Conduct and Guilty Plea
In January 2018, Gardner, a convicted felon, was pulled over
by a Tuscaloosa County Sheriff’s Office deputy during a traffic
stop. The deputy ran a check on the license plate of the car Gardner
was driving and found that the plate was assigned to a different
vehicle. The deputy also confirmed Gardner’s identity and
discovered that Gardner had an outstanding warrant. During a
search of Gardner’s car, the deputy found a gun under the driver’s
seat. Although Gardner denied ownership of the gun, recorded jail
telephone calls showed that Gardner was in fact the gun’s owner
but had coached the passenger in his car to claim ownership.
In 2019, Gardner pled guilty to one count of being a felon in
possession of a firearm, in violation of § 922(g)(1).
B. Presentence Investigation Report
The probation officer prepared a presentence investigation
report (“PSI”) that recommended: (1) a base offense level of 24
under U.S.S.G. § 2K2.1(a)(2) because Gardner committed the
offense after sustaining two prior felony convictions for a
controlled substance offense; (2) a two-level increase under
U.S.S.G. § 3C1.1 for attempting to unlawfully influence the
passenger in his car to claim ownership of the gun; and (3) a three-
level decrease under U.S.S.G. § 3E1.1(a) and (b) for acceptance of
responsibility.
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As to criminal history, the PSI stated that Gardner had one
2011 and two separate 2014 Alabama convictions for first degree
unlawful possession of marijuana for other than personal use and a
2015 Alabama conviction for unlawful distribution of a controlled
substance. With a total offense level of 23 and a criminal history
category of III, the resulting advisory guidelines range was 57 to 71
months’ imprisonment. The PSI stated that the statutory
maximum sentence for his firearm offense was ten years’
imprisonment under 18 U.S.C. § 924(a)(2) and did not recommend
an ACCA enhancement.
C. Objections as to ACCA Enhancement Based on
Gardner’s Prior Drug Convictions
Both Gardner and the government objected to the PSI. In
their objections and later briefs, the parties disputed whether
Gardner was subject to an ACCA-enhanced sentence because his
four prior Alabama drug convictions qualified as “serious drug
offenses.”
The parties also submitted copies of state court documents
relating to Gardner’s prior drug convictions, including, inter alia,
the charging, plea, and sentencing documents for the four drug
convictions. According to these documents, Gardner’s 2011
conviction for first-degree unlawful possession for other than
personal use, in violation of Ala. Code § 13A-12-213(a)(1), was a
class C felony. The statutory sentencing range was not less than
one year and one day and not more than ten years, and Gardner
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was sentenced to five years in prison. See Ala. Code §§ 13A-12-
213(b), 13A-5-6(a)(3) (2006).
Because this 2011 conviction predated the adoption of
Alabama’s presumptive guidelines in 2013, there was no mention
of a presumptive sentencing range. At sentencing and on appeal
Gardner has not disputed that this 2011 conviction qualified as a
serious drug offense under the ACCA. Instead, he has focused on
his three convictions sustained after Alabama’s presumptive
sentencing standards were adopted.
For Gardner’s two § 13A-12-213(a)(1) convictions in 2014,
the statutory maximum prison term was 20 years because Gardner
already had one prior felony conviction. The presumptive
sentencing range was 13 to 32 months, and the 20-year statutory
maximum was the sentencing range for any upward departure
from the presumptive sentencing range. For these two crimes,
however, the state had not asserted any aggravating factors that
would permit the state court to depart from the presumptive
sentencing range, and the state court imposed 24-month sentences
for each conviction, to run concurrently.
Finally, Gardner’s 2015 distribution of a controlled
substance offense, in violation of Ala. Code § 13A-12-211, was a
class B felony. Because Gardner now had three prior felonies, the
statutory maximum prison term was life imprisonment. The
presumptive sentencing range was 30 to 104 months, and the life
statutory maximum was the sentencing range for any upward
departure from the presumptive sentencing range. As with his
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2014 drug crimes, the state did not assert any aggravating factors
to support an upward departure, and the state court imposed a
sentence of seven years.
D. Sentencing
At a reconvened sentencing hearing, the district court
sustained the government’s objection and concluded that
Gardner’s prior Alabama drug convictions were ACCA-qualifying
felonies. The district court determined that the “maximum term
of imprisonment prescribed by law” for purposes of the ACCA’s
definition of “serious drug offense” was the state’s statutory
maximum prison term. Because Gardner had at least three ACCA-
qualifying predicates, his total offense level was 30 and his criminal
history category was IV, and his advisory guidelines range was 180-
months, the statutory minimum term. See U.S.S.G. §§ 4B1.4,
5G1.1(b). The district court imposed a 180-month sentence.
II. DISCUSSION
A. “Serious Drug Offense” Under the ACCA
Under the ACCA, a defendant who violated § 922(g) is
subject to a mandatory minimum 15-year sentence if the defendant
has three previous convictions for a “serious drug offense” that
were “committed on occasions different from one another.” See
18 U.S.C. § 924(e)(1). The ACCA defines “serious drug offense” as,
among other things, “an offense under State law, involving
manufacturing, distributing, or possessing with intent to
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manufacture or distribute, a controlled substance” and “for which
a maximum term of imprisonment of ten years or more is
prescribed by law.” Id. § 924(e)(2)(A)(ii). 1
On appeal, Gardner does not dispute that his two 2014
Alabama convictions for first degree unlawful possession of
marijuana for other than personal use and his 2015 Alabama
conviction for unlawful distribution of a controlled substance were
committed on different occasions and are all offenses under state
law involving the manufacture, distribution, or possession with
intent to manufacture or distribute a controlled substance. The
only issue is whether for these three drug offenses “a maximum
term of imprisonment of ten years or more is prescribed by law.”
This Court applies a categorical approach to determine
whether the defendant’s prior conviction was for an offense for
which a “maximum term of imprisonment” of ten years or more
was “prescribed by law.” McCarthy v. United States, 135 F.3d 754,
756-57 (11th Cir. 1998). In doing so, we “look to the maximum
sentence for the offense category” and not to “the particular
sentence” the defendant received or to the “particular facts of the
defendant’s crime.” Id. at 757 (footnote omitted).
1
We review de novo whether prior convictions qualify as a serious drug
offense under the ACCA. United States v. Conage, 976 F.3d 1244, 1249 (11th
Cir. 2020).
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B. Alabama Sentencing Scheme
Under Alabama law in effect at the time of Gardner’s 2014
and 2015 convictions, the statutory maximum prison sentence was
governed by the felony offense classification of Classes A, B and C.
See Ala. Code § 13A-5-6 (2006). The statutory maximum for the
offense of first-degree unlawful possession of marijuana for other
than personal use, a Class C felony, was “not more than 10 years.”
Ala. Code §§13A-12-213(a)(1)-(2), 13A-5-6(a)(3) (2006). The
statutory maximum for an unlawful distribution of a controlled
substance offense, a Class B felony, was “not more than 20 years.”
Ala. Code §§ 13A-12-211(a)-(b), 13A-5-6(a)(2) (2006).
In addition, under the version of Alabama’s habitual
offender statute in effect at the time, a defendant convicted of a
Class C felony who had a prior felony conviction was punished for
a Class B felony, i.e., not more than twenty years. Ala. Code
§§ 13A-5-6(a)(2), 13A-5-9(a)(1) (2006). A defendant convicted of a
Class B felony who had three prior felony convictions was subject
to a term of not less than 20 years and up to life imprisonment. Ala.
Code § 13A-5-9(c)(2) (2006).
On appeal, it is undisputed that each of Gardner’s offenses
of conviction carried a statutory maximum prison term of ten years
or more under Alabama’s felony classification statute. Further,
Gardner was also subject to an enhanced statutory maximum
prison term as a habitual felony offender.
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Since October 1, 2013, Alabama also has used presumptive
sentencing standards to sentence defendants for certain nonviolent
offenses. The Alabama Sentencing Commission adopted these
guidelines at the direction and approval of the Alabama legislature.
See Ala. Code § 12-25-34.2(b); see also Act No. 2012-473, Ala. Acts
2012; Clark v. State, 166 So. 3d 147, 149 (Ala. Crim. App. 2014).
The guidelines include lists of “aggravating and mitigating
factors that allow for a departure from the presumptive sentencing
recommendations.” Ala. Code § 12-25-34.2(a)(1), (a)(5), (b); see
also Presumptive and Voluntary Sentencing Standards Manual
(“Manual”) at 14, 25-26 (Oct. 1, 2013), https://sentencing
commission.alacourt.gov/media/1064/2013-presumptive-
manual.pdf.
Under the Alabama guidelines, a sentence above the
presumptive range must be based on an aggravating factor that has
been proved to a jury beyond a reasonable doubt or admitted by
the defendant. Manual at 14, 24; see also Hyde v. State, 185 So. 3d
501, 504 (Ala. Crim. App. 2015) (stating that under the presumptive
standards, the sentencing court is required to follow “the
dispositional and durational recommendation” and can depart only
upon a finding of aggravating or mitigating factors). 2 An Alabama
2
The 2013 guidelines contain a lengthy list of aggravating factors that describe
various circumstances of the offense, such as whether the offense involved
multiple participants; whether the defendant was a leader or organizer;
whether the defendant held public office or was a fiduciary when the offense
was committed; whether the offense involved a high degree of sophistication
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court, however, cannot impose a sentence in excess of the statutory
maximum sentence, even if the guidelines recommend a sentence
above the statutory maximum penalty prescribed by Alabama law.
Laakkonen v. State, 293 So. 3d 439, 446 (Ala. Crim. App. 2019).
C. McCarthy v. United States
Our precedent in McCarthy has construed the definition of
“serious drug offense” in § 924(e)(2). We thus begin with
McCarthy.
In McCarthy, the defendant had three prior Florida
convictions for the sale of cocaine. 135 F.3d at 756. The statutory
maximum penalty for Florida’s offense of the sale of cocaine was
fifteen years. Id. Florida had presumptive sentencing guidelines
just as Alabama does here. See id.
Like Gardner contends here, the defendant in McCarthy
argued that “the high end of the presumptive range” under
Florida’s sentencing guidelines “was in fact the maximum in his
case, as evidenced by the fact that the sentencing judge presiding at
or planning, occurred over a long period, or involved multiple victims; and
whether the defendant exposed a child to criminal conduct, just to name a
few. Manual at 26.
The list also contains a final, catch-all factor for “[a]ny other
‘aggravating factor’ reasonably related to the purposes of sentencing.” Id.
Generally, the prosecutor must give the defendant notice of any aggravating
factors seven days before trial, but the trial court may permit notice to be given
at any time upon a showing of good cause so long as the defendant has an
opportunity to research and rebut the aggravating factor. Id. at 24.
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his prior sentencing proceedings did not depart upwards.” Id.
Thus, the defendant argued, “the § 924(e)(1) enhancement was not
triggered.” Id.
This Court rejected the defendant’s argument. In doing so,
the Court first analyzed the “plain meaning of the language of the
statute” and concluded “that § 924(e)(2)(A)’s definition of ‘serious
drug offense’ employs a categorical approach.” Id. at 756-57.
Under the categorical approach, “a court should look to the
maximum sentence for the offense category in which the particular
predicate falls, not to the particular sentence received by the
defendant or the particular facts of the defendant’s crime.” Id. at
757 (footnote omitted).
The Court found McCarthy’s argument to the contrary
“flawed because the high end of the presumptive range is simply
not the ‘maximum.’” Id. The Court agreed that Florida’s
sentencing guidelines were “a law enacted by the Florida
legislature” and therefore “prescribed by law” as required by the
ACCA. Id. at 756 n.2. The Court explained, however, that “the
high end of the particular presumptive range is simply not the
‘maximum’ sentence which is prescribed by law.” Id. On this
point, the Court stressed that “[t]he Florida sentencing guidelines
provide for upward departures above the presumptive sentence
range.” Id. at 756.
Applying this categorical approach, the Court declined to
look at the “particular facts of [McCarthy’s] prior convictions and
sentences.” Id. at 757. Instead, the Court held that the language
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“an offense . . . for which a maximum term of imprisonment of ten
years or more is prescribed by law” in § 924(e)(2)(A)(ii) referred to
“the statutory maximum sentence” applicable to McCarthy’s
predicate offenses. Id. (“The only true maximum sentence for the
offense category is the statutory maximum.” (footnote omitted)).
And because McCarthy’s predicate sale of cocaine offenses “carried
a statutory maximum term of fifteen years,” our Court concluded
“that McCarthy’s prior convictions qualified as ‘serious drug
offenses’ so that the § 924(e)(2)(A)(ii) enhancement was triggered.”
Id. at 757-58.
D. Gardner’s Claim
Applying the categorical approach required by McCarthy to
Gardner’s prior convictions, we conclude that the “maximum term
of imprisonment” for ACCA purposes is the statutory maximum
prison term for each drug offense. Like Florida’s guidelines in
McCarthy, Alabama’s guidelines permit upward departures from
the presumptive range. The fact that Gardner did not receive an
upward departure sentence for any of his particular drug offenses
is immaterial because under the categorical approach we look to
“the maximum sentence for the offense category” and not to “the
particular sentence received by the defendant or the particular facts
of the defendant’s crime.” See id. at 757 & n.3. Given that Alabama
law provides for upward departures, the high end of the sentencing
range the state court calculated for Gardner using Alabama’s
presumptive sentencing standards simply is not the “maximum”
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prison term for purposes of the ACCA’s definition of a “serious
drug offense.” See id. at 756 & n.2.
To the extent Gardner suggests that McCarthy has been
undermined to the point of abrogation by United States v.
Rodriquez, 553 U.S. 377, 128 S. Ct. 1783 (2008), we disagree. In
Rodriquez, the Supreme Court considered only whether the
phrase “maximum term of imprisonment prescribed by law” in the
ACCA meant Washington state’s five-year statutory maximum for
first offenses or its ten-year statutory maximum for second and
subsequent offenses where the defendant’s judgment of conviction
showed he had faced the recidivism enhancement. 553 U.S. at 381-
82, 128 S. Ct. at 1786-87. The Supreme Court held that, in those
circumstances, the statutory ten-year “maximum set by the
applicable recidivist provision” was the “maximum term of
imprisonment” required by the ACCA. Id. at 393, 128 S. Ct. at
1793.
Rodriquez did not involve mandatory or presumptive
sentencing guidelines like those in Alabama and in Florida in
McCarthy. More importantly, the Supreme Court in Rodriquez
reached the same conclusion as this Court in McCarthy when it
considered and rejected the same argument that Gardner makes to
this Court. Specifically, the defendant in Rodriquez contended that
if recidivism statutes could increase the “maximum term,” then “it
must follow that [state] mandatory guidelines systems that cap
sentences can decrease the ‘maximum term’ of imprisonment.” Id.
at 390, 128 S. Ct. at 1792. The Supreme Court disagreed, stating
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that “the phrase ‘maximum term of imprisonment . . . prescribed
by law’ for the ‘offense’ was not meant to apply to the top sentence
in a guidelines range.” Id. The Supreme Court explained that this
was so “because guidelines systems typically allow a sentencing
judge to impose a sentence that exceeds the top of the guidelines
range under appropriate circumstances.” Id.
Rodriquez further pointed out that the “concept of the
‘maximum’ term of imprisonment” in statutes predating the ACCA
“necessarily referred to the maximum term prescribed by the
relevant criminal statute, not the top of a sentencing guidelines
range.” Id. at 391, 128 S. Ct. at 1792. “In light of this established
pattern and the relative newness of sentencing guidelines systems”
when the ACCA was enacted, the Supreme Court concluded “that
Congress meant for the concept of the ‘maximum term of
imprisonment’ prescribed by law for an ‘offense’ to have the same
meaning in [the] ACCA.” Id. at 392, 128 S. Ct. at 1793.
In short, Rodriquez’s rejection of the argument that the high
end of a state sentencing guidelines range is the “maximum term”
under the ACCA’s definition of “serious drug offense” is entirely
consistent with and supports, not undermines, McCarthy.3
3
We similarly reject Gardner’s suggestion that McCarthy was undermined to
the point of abrogation by Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.
Ct. 2577 (2010). Carachuri-Rosendo was decided in the immigration context
and addressed the materially different question of whether a petitioner seeking
cancellation of removal had been convicted of an offense “punishable” by
more than one year under the Controlled Substances Act and therefore was
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In Gardner’s case, the “maximum term of imprisonment”
for Alabama first-degree unlawful possession of marijuana for
other than personal use was ten years. See Ala. Code §§ 13A-12-
213(a)(1), (b), 13A-5-6(a)(3). And the “maximum term of
imprisonment” for Alabama unlawful distribution of a controlled
substance was twenty years. See Ala. Code §§ 13A-12-211(a), (b),
13A-5-6(a)(2). Moreover, given Gardner’s habitual offender status
at the time of his prior convictions, the statutory maximum was
twenty years for the unlawful possession offenses and life
imprisonment for the unlawful distribution offense. See Ala. Code
§§ 13A-5-6(a)(2), 13A-5-9 (a)(1), (c)(2); Rodriquez, 553 U.S. at 393,
128 S. Ct. at 1793.
Accordingly, the district court did not err in concluding that
Gardner had at least three qualifying serious drug offenses under
the ACCA and in imposing an enhanced 180-month sentence.
AFFIRMED.
convicted of an “aggravated felony” for purposes of the Immigration and
Nationality Act. See 560 U.S. at 567, 581-82, 130 S. Ct. at 2581, 2589.