[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 13, 2006
No. 06-10302 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00099-CR-3-009-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PERRY STEAN WILLIAMS,
a.k.a. Perry Williams,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 13, 2006)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Perry Stean Williams appeals his mandatory life sentence for conspiracy to
distribute and possess with intent to distribute five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846. On appeal, Williams
argues that the district court erred by applying the mandatory minimum term of life
imprisonment under § 841(b)(1)(A)(ii). For the reasons set forth more fully below,
we affirm.1
Williams and 15 codefendants were indicted for conspiring, from on or
about July 1, 2002 through September 22, 2005, the date the indictment was
returned, to distribute and possess with intent to distribute 3,4-Methylenedioxy-
methamphetamine (“MDMA” or “Ecstacy”) and five kilograms or more of
cocaine. On September 28, 2005, Williams pled guilty to the sole count of the
indictment. According to the Presentence Investigation Report (“PSI”), Williams
was a mid-level distributor of cocaine. He admitted to personally distributing
seven kilograms of cocaine and he and a second co-conspirator expected to receive
two kilograms of a four kilogram load of cocaine, which was seized by law
enforcement on September 7, 2005. The probation officer held Williams
accountable for nine kilograms of cocaine.
1
Because we affirm Williams’s statutory minimum term of life imprisonment, we do not
reach Williams’s argument that the district court erred by sentencing him as a career offender
under the Sentencing Guidelines. United States v. Rice, 43 F.3d 601, 608 (11th Cir. 1995).
2
The government sought to invoke the increased penalty provisions of
§ 841(b)(1)(A) against Williams based on a 1989 Florida state felony drug
conviction and a June 28, 2005 Florida state felony conviction for possession of
cocaine. The probation officer concluded that the 2005 conviction was related to
the instant offense. Based on these convictions, the probation officer found that
Williams was subject to a mandatory minimum term of life imprisonment. The
district court imposed the mandatory sentence of life imprisonment. The court
rejected Williams’s argument that there must be a five-kilogram transaction
following the prior conviction in order for the sentencing enhancement to apply,
concluding that “just a continuation of the conspiracy which comes under that
section” was sufficient.
On appeal, Williams argues that, in order to be subject to mandatory
minimum term of life imprisonment under § 841(b)(1)(A)(ii)(II), he had to be
involved in a transaction involving five or more kilograms of cocaine after his
second prior conviction became final. He contends that the mandatory life
sentence was erroneously imposed because, after his June 28, 2005 conviction
became final, he was not involved in a violation of § 841(a) involving five or more
kilograms of cocaine and, at most, conspired to possess with intent to distribute
two kilograms of cocaine. Alternatively, Williams argues that there was
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insufficient time and criminal conduct between his state conviction and federal
arrest to warrant the use of the state conviction for enhancement purposes. He
notes that slightly more than two months elapsed between his conviction and the
end of the conspiracy and the extent of his involvement after his conviction was
telephone conversations concerning possessing with intent to distribute cocaine.
We review Williams’s preserved argument regarding the interpretation and
application of § 841(b)(1)(A) de novo. See United States v. Walker, 228 F.3d
1276, 1277 (11th Cir. 2000). Williams did not object before the district court on
the ground that his second prior conviction could not be used for enhancement
purposes due to insufficient time and criminal conduct. Accordingly, we review
this argument for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir.), cert. denied, 125 S.Ct. 2935 (2005). Under this standard of review,
there must be (1) an error, (2) that is plain, and (3) that affects substantial rights.
Id. If these three conditions are met, we may notice the error only if “the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citation and quotation marks omitted). In order for an error to
be plain, it must be obvious or clear under current law. United States v. Gerrow,
232 F.3d 831, 835 (11th Cir. 2000). “[W]here neither the Supreme Court nor this
Court has ever resolved an issue, and other circuits are split on it, there can be no
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plain error in regard to that issue.” Id. (citation and quotation marks omitted).
Distribution and possession with intent to distribute a controlled substance
are among the acts prohibited by § 841(a). 21 U.S.C. § 841(a). Conspiring to
commit these offenses subjects the offender to “the same penalties as those
prescribed for the offense, the commission of which was the object of the . . .
conspiracy.” Id. § 846. If the violation of § 841 involves five kilograms or more
of cocaine, the minimum mandatory term of imprisonment is ten years. Id.
§ 841(b)(1)(A). The mandatory minimum increases to 20 years’ imprisonment
“[i]f any person commits such a violation after a prior conviction for a felony drug
offense has become final.” Id. Finally, “[i]f any person commits a violation of this
subparagraph . . . after two or more prior convictions for a felony drug offense
have become final, such person shall be sentenced to a mandatory term of life
imprisonment without release.” Id.
The essence of Williams’s first argument is that, in order to commit “a
violation of this subparagraph . . . after two or more prior convictions for a felony
drug offense have become final,” he must have been involved in transactions
totaling five kilograms or more of cocaine after his second prior conviction became
final. While we have not considered this issue, we find the reasoning of the Sixth
Circuit, which rejected Williams’s position, persuasive. The Sixth Circuit
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reasoned as follows:
Walker has urged that any cocaine sold prior to the time both
convictions became final should not be included in the calculation of
the total amount sold, and that therefore, he was not responsible for
selling 50 grams, and the statutory sentence has not been triggered.
There is no question that this reasoning has a certain appeal, as a
plausible means to avoid what is a Draconian sentence. But to follow
this route would be to ignore the logic of a conspiracy charge. While
it is true that the conspiracy came into existence before the second
conviction was final, it is also indisputably true that Walker continued
to be involved in the conspiracy after both prior convictions were
final. Thus, “he ‘committed’ the crime of conspiracy throughout the
duration of the conspiracy.” And therefore, it must be said that
Walker committed the crime of conspiracy after he had two final
felony drug-offense convictions.
Walker’s argument would require that we give unwarranted
legal significance to the date of each overt act. But Walker was not
charged with four discrete violations of the drug laws, one for each
sale. He was charged with a single, ongoing conspiracy. He
committed the conspiracy every day over the life of the agreement,
and the timing of each separate overt act is not controlling. We
conclude, therefore, that Walker committed a violation of 21 U.S.C.
§ 846 at a time that he had two prior final convictions. We also
conclude that the violation involved more than 50 grams of cocaine
base. Therefore, the district court properly applied the statutory
sentence mandated by 21 U.S.C. § 841(b)(1)(A).
United States v. Walker, 160 F.3d 1078, 1093 (6th Cir. 1998) (citation omitted).
The nature of a conspiracy provides further support for our holding. “The
gist of the crime of conspiracy as defined by the statute is the agreement or
confederation of the conspirators to commit one or more unlawful acts . . . . A
conspiracy is not the commission of the crime which it contemplates . . . .”
6
Braverman v. United States, 317 U.S. 49, 53-54, 63 S.Ct. 99, 101-02, 87 L.Ed. 23
(1942); see also Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289,
43 L.Ed.2d 616 (1975) (“Conspiracy is an inchoate offense, the essence of which is
an agreement to commit an unlawful act.”).
Like Walker, Williams was charged with a single ongoing conspiracy, and
this conspiracy involved five kilograms or more of cocaine. We agree with the
Sixth Circuit that the mandatory minimum term of life imprisonment is triggered
by Williams’s continued participation in the conspiracy and not by the amount of
cocaine he conspired to distribute and possess with intent to distribute after his
second prior conviction became final. Accordingly, Williams’s continued
participation in a single conspiracy to distribute and possess with intent to
distribute five kilograms or more of cocaine after his second prior conviction
became final triggered the mandatory minimum term of life imprisonment under
§ 841(b)(1)(A)(ii).
We now turn to Williams’s alternative argument that his June 2005
conviction could not be used for enhancement purposes. Williams’s June 28, 2005
conviction became final on July 28, 2005, when the 30-day period to appeal that
conviction expired. See Hagins v. United States, 267 F.3d 1202, 1208 (11th Cir.
2001); Fla.R.App.P. 9.140(a), (b). Williams expected to receive two kilograms of
7
a four kilogram load of cocaine, which was seized by law enforcement on
September 7, 2005. At sentencing, Williams admitted that he had phone
conversations with a co-conspirator about another transaction shortly before their
arrests and agreed that the expected delivery was interrupted only because of an
arrest.
If there was an error in counting his June 28, 2005 conviction as a prior
conviction under § 841(b)(1)(A), Williams cannot establish that it was plain. The
test as to whether to use a prior conviction to enhance a sentence under
§ 841(b)(1)(A) is not mere passage of time; rather “the focus of the inquiry is on
the degree of criminal activity that occurs after a defendant’s conviction for
drug-related activity is final rather than when the conspiracy began.” Hagins, 267
F.3d at 1208 (citation and quotation marks omitted). Although less than two
months elapsed between the time Williams’s prior conviction became final and his
arrest on September 20, 2005, the focus of the inquiry is on the degree of criminal
activity following the prior conviction’s finality. Id. Furthermore, we have not set
a minimum time limit, see id.; United States v. Hansley, 54 F.3d 709, 717 (11th
Cir. 1995), and the Fourth Circuit allowed the use of a prior conviction occurring a
little over one month before the defendant’s arrest on the federal conspiracy
charge, United States v. Howard, 115 F.3d 1151, 1158 (4th Cir. 1997). We have
8
not explained the degree of criminal activity required in order to use a prior
conviction for sentence enhancement purposes. See Hagins, 267 F.3d at 1208;
Hansley, 54 F.3d at 717. Moreover, the Second Circuit, using the same test,
simply requires that “[a] defendant’s sentence must therefore be enhanced if there
is ‘continued involvement’ in criminality subsequent to the prior conviction.”
United States v. Martino, 294 F.3d 346, 351 (2d Cir. 2002). Thus, “the
government must demonstrate that a defendant had a meaningful opportunity to
refrain from criminal activity and instead engaged in criminality anew.” Id.
Accordingly, Williams cannot show that his attempt to obtain two kilograms of
cocaine, which was prevented by the actions of law enforcement officers, was
clearly or obviously an insufficient degree of criminal activity so as to preclude the
use of his second prior conviction for enhancement purposes.
In light of the foregoing, Williams’s sentence is
AFFIRMED.
9