[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 95-3254
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D. C. Docket Nos. TCR-90-04028; TCA-94-40041-WS
JOHN MICHAEL MCCARTHY, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
No. 96-2558
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D. C. Docket No. 89-76-CR-FTM-25D
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MICHAEL MCCARTHY, JR.,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle and Northern Districts of Florida
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(February 20, 1998)
1
Before TJOFLAT and ANDERSON, Circuit Judges, and HOEVELER*, Senior District
Judge.
PER CURIAM:
_________________________
*Honorable William M. Hoeveler, Senior U.S. District Court Judge for the Southern
District of Florida, sitting by Designation.
These two consolidated appeals by John Michael McCarthy (“McCarthy”) raise only
one issue that warrants discussion.1 McCarthy was convicted of possession of a firearm by
a convicted felon in violation of 18 U.S.C. § 922(g)(1), and the sentence now on appeal
1
The other issues raised by McCarthy are without merit and warrant no
discussion.
2
includes a fifteen-year mandatory minimum sentence pursuant to 18 U.S.C. § 924(e)(1).
McCarthy objects to the application in his case of the fifteen-year mandatory minimum.
18 U.S.C. § 924(e)(1) provides:
In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title
for a violent felony or a serious drug offense, or both, committed on occasions
different from one another, such person shall be fined not more than $25,000
and imprisoned not less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the conviction under
section 922(g).
18 U.S.C. § 924(e)(1) (emphasis added).
A “serious drug offense” is defined to include:
an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for
which a maximum term of imprisonment of ten years or more is prescribed by
law.
18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added).
McCarthy challenges the application of the fifteen-year mandatory minimum by
arguing that he does not have three prior convictions that qualify to trigger the enhancement.
He concedes that he has one qualifying prior conviction. He also concedes that he has three
additional prior convictions for the sale of cocaine in violation of Fla. Stat. § 893.13(1)(a).
With respect to each of these, he concedes that the statutory maximum penalty was fifteen
years. Finally, he concedes that these three drug convictions would qualify as “serious drug
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offenses,” and thus trigger the enhancement, if the “maximum term of imprisonment of ten
years” language of § 924(e)(2)(A)(ii) refers to the statutory maximum penalty.
However, McCarthy argues that this § 924(e)(2)(A)(ii) language refers instead to
Florida’s sentencing guideline scheme. McCarthy points out that the guidelines’ presumptive
sentence range for each of the prior convictions at issue was between three and one-half and
four and one-half years. McCarthy argues that the maximum sentence for his three prior
drug convictions was four and one-half years (the high end of the presumptive range), and
thus the § 924(e)(1) enhancement was not triggered.
The issue before us in this appeal is whether the language of §
924(e)(2)(A)(ii)–“maximum term of imprisonment of ten years”–refers to the statutory
maximum penalty or the high end of the presumptive sentencing range of the Florida
sentencing guidelines.
We begin our analysis with the plain meaning of the language of the statute, which
defines a “serious drug offense” as “an offense . . . for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
McCarthy’s argument that the quoted language refers to the high end of the Florida
sentencing guidelines’ presumptive range is flawed because the high end of the presumptive
range is simply not the “maximum.”2 The Florida sentencing guidelines provide for upward
2
McCarthy places emphasis on the last three words of §
924(e)(2)(A)(ii)–“for which a maximum term of imprisonment of ten years or
more is prescribed by law”–and on the Supreme Court’s holding in Miller v.
Florida, 482 U.S. 423, 107 S.Ct. 2446 (1987), that the Florida state sentencing
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departures above the presumptive sentence range. See Miller v. Florida, 482 U.S. 423, 425-
26, 107 S.Ct. 2446, 2449 (1987) (describing this aspect of the Florida sentencing guidelines).
McCarthy argues that the high end of the presumptive range was in fact the maximum
in his case, as evidenced by the fact that the sentencing judge presiding at his prior
sentencing proceedings did not depart upwards, but rather actually departed downwards. We
reject McCarthy’s suggestion that § 924(e)(2)(A)’s definition of “serious drug offense” ties
the ten-year maximum to the criminal defendant’s particular sentence. Rather, the Supreme
Court has held that “the enhancement provision always has embodied a categorical approach
to the designation of predicate offenses.” Taylor v. United States, 495 U.S. 575, 588, 110
S.Ct. 2143, 2153 (1990). Like this case, Taylor involved a defendant convicted of unlawful
possession of a firearm in violation of § 922(g), whose sentence was enhanced under §
924(e) on the basis of three prior convictions. In Taylor, the predicate offenses potentially
fell under those defined as a “violent felony,” whereas the predicate offenses at issue in this
case potentially fall under those defined as a “serious drug offense.” The Supreme Court
discussed the approach to predicate offenses which Congress intended. The Court stated:
First, the language of § 924(e) generally supports the inference that
Congress intended the sentencing court to look only to the fact that the
defendant had been convicted of crimes falling within certain categories, and
not to the facts underlying the prior convictions. . . .
guidelines law “is a law enacted by the Florida Legislature, and it has the force
and effect of law.” Miller, 482 U.S. at 435, 107 S.Ct. at 2453. It is of course
true that the Florida state sentencing guidelines are “prescribed by law”;
however, the high end of a particular presumptive range is simply not the
“maximum” sentence which is prescribed by law.
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Second, as we have said, the legislative history of the enhancement
statute shows that Congress generally took a categorical approach to predicate
offenses. There was considerable debate over what kinds of offenses to
include and how to define them, but no one suggested that a particular crime
might sometimes count towards enhancement and sometimes not, depending
on the facts of the case. If Congress had meant to adopt an approach that
would require the sentencing court to engage in an elaborate factfinding
process regarding the defendant’s prior offenses, surely this would have been
mentioned somewhere in the legislative history.
Third, the practical difficulties and potential unfairness of a factual
approach are daunting. In all cases where the Government alleges that the
defendant’s actual conduct would fit the generic definition of burglary, the
trial court would have to determine what that conduct was.
Taylor, 495 U.S. at 600-01, 110 S.Ct. at 2159. Guided by the rationale in Taylor, we
conclude that § 924(e)(2)(A)’s definition of “serious drug offense” employs a categorical
approach. Under this approach, a court should look to the maximum sentence for the offense
category in which the particular predicate offense falls, not to the particular sentence
received by the defendant or the particular facts of the defendant’s crime.3 Thus, we reject
McCarthy’s suggestion that we look to the particular facts of his prior convictions and
3
In an apparent attempt to deflect the force of the Supreme Court’s
observation that Congress could not have intended to impose upon sentencing
courts the burden of relitigating the facts underlying each predicate offense,
McCarthy emphasizes the fact that his actual sentence was three years.
Although it is true that the practical difficulties pointed out by the Supreme
Court in Taylor could be avoided by looking to the readily ascertainable actual
sentence imposed for each predicate offense, we reject McCarthy’s invitation to
look to the actual sentence imposed for a predicate offense. Such an approach
flies in the face of the plain meaning of the statutory language, which refers to
the “maximum” sentence, not to the actual sentence imposed.
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sentences. The only true maximum sentence for the offense category is the statutory
maximum.4
For the foregoing reasons, we conclude that the statutory maximum sentence is the
sentence referred to by the language “an offense . . . for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18 U.S. C. § 924(e)(2)(A)(ii)
(defining “serious drug offense”). Because the predicate drug offenses at issue here carried
a statutory maximum term of fifteen years, we conclude that McCarthy’s prior convictions
qualified as “serious drug offenses” so that the § 924(e)(2)(A)(ii) enhancement was
triggered.
Accordingly, the judgment of the district court is
AFFIRMED.
4
McCarthy’s reliance upon United States v. Morton, 17 F.3d 911 (6th
Cir. 1994) is misplaced. The primary issue in Morton was whether the
maximum sentence referred to in § 924(e)(2)(A)(ii) was the law at the time of
the prior conviction, or the law at the time of the federal sentencing at issue. The
Sixth Circuit held the latter. The prior conviction in Morton carried a maximum
term of more than ten years at the time of that conviction, but (because of a
change in the law) carried only a six-year maximum at the time of Morton’s
sentencing under § 924(e) in federal court. The Sixth Circuit applied the law at
the time of the federal sentencing and held that the prior conviction was not a
“serious drug offense.” That issue is not before this court; there is no claim in
this case that Florida’s maximum sentence was reduced after the point in time
that McCarthy was sentenced in state court. Moreover, there is no indication in
the Morton opinion that the six-year maximum sentence (which disqualified the
prior conviction as a “serious drug offense”) was subject to an upward departure.
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