[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-15150 ELEVENTH CIRCUIT
MAY 30, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 1:11-cr-20431-KMM-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHMAN ALLEN SIMMONS,
a.k.a. Rich,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 30, 2012)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
After pleading guilty, Richman Allen Simmons appeals his 188-month
sentence for conspiring to possess with the intent to distribute cocaine, in violation
of 21 U.S.C. § 846. On appeal, Simmons argues that his sentence is unreasonable
because the district court erroneously designated him a career offender under
U.S.S.G. § 4B1.1. After review, we affirm.
We first address the government’s request that we dismiss Simmons’s
appeal pursuant to the sentence appeal waiver in Simmons’s plea agreement.
Under that provision, Simmons agreed to waive his right to appeal his sentence or
the manner in which it was imposed unless: (1) the sentence exceeded the
statutory maximum sentence (in this case, forty years); (2) is the result of an
upward departure or variance from the guidelines range; (3) is an illegal sentence;
or (4) the government appealed the sentence.
The plea transcript indicates that the magistrate judge specifically
questioned Simmons about the sentence appeal waiver and its exceptions and that
Simmons indicated that he understood the waiver. However, the record also
shows that the district court never adopted the magistrate judge’s written report
recommending acceptance of the plea agreement, and, at sentencing, the district
court informed Simmons he had the right to appeal his sentence and did not
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discuss the waiver at all.1 This Court has not yet issued a published opinion
enforcing an appellate waiver in this situation, but several sister circuits have
concluded that the district court constructively accepted a plea agreement when
the district court worked within the terms of the agreement and thus enforced the
waiver. See, e.g., United States v. Leyva-Matos, 618 F.3d 1213, 1216 n.1 (10th
Cir. 2010); United States v. Brown, 571 F.3d 690, 694 (7th Cir. 2009); United
States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993). And here, the district court
arguably proceeded as though it had formally accepted the plea agreement.
We need not resolve this issue because Simmons’s appeal lacks merit in any
event.2 Specifically, Simmons contends that the district court erred (1) in counting
Simmons’s three state drug possession convictions because they were based on
Florida Statutes § 893.13, a facially unconstitutional statute, and (2) in counting
1
We note that the district court’s final judgment after sentencing reflects that Simmons
pled guilty and was adjudicated guilty. Nonetheless, if the district court is going to allow the
magistrate judge to conduct the plea hearing, and even if the defendant does not object to the
magistrate judge’s report, the district court still should formally adopt the report and thereby
accept the guilty plea before sentencing. This would have avoided the issues here.
2
We review the reasonableness of a sentence for abuse of discretion. United States v.
Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We review the sentencing court’s findings of fact
for clear error and its application of the Sentencing Guidelines to those facts de novo. United
States v. Cooper, 203 F.3d 1279, 1286 (11th Cir. 2000). Although Simmons’s appeal brief
states that his sentence is both substantively and procedurally unreasonable, the brief does not
contain any argument as to substantive reasonableness. Instead, the brief argues only that the
district court improperly calculated Simmons’s guidelines range as a career offender, which is a
procedural reasonableness challenge.
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his state aggravated battery conviction because Simmons was actually innocent of
that offense.
Under U.S.S.G. § 4B1.1, a defendant is a career offender if, among other
things, 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). Commentary to the
Sentencing Guidelines states that prior convictions that have been reversed,
vacated or “ruled constitutionally invalid in a prior case” should not be counted.
U.S.S.G. § 4A1.2, cmt. n.6. We have explained, however, that nothing in this
commentary or the guidelines themselves “authorizes district courts to question
state convictions for other reasons.” United States v. Roman, 989 F.2d 1117, 1120
(11th Cir. 1993) (en banc). Instead, “[a] defendant must demonstrate that a
conviction is ‘presumptively void’ before a sentencing court may inquire into its
constitutional validity for purposes of sentencing under U.S.S.G. § 4A1.2.”
United States v. Farris, 77 F.3d 391, 397 (11th Cir. 1996).
“This court has suggested that ‘presumptively void’ convictions ‘are small
in number and are perhaps limited to uncounseled convictions.’” United States v.
Cooper, 203 F.3d 1279, 1287 (11th Cir. 2000) (quoting Roman, 989 F.3d at 1120).
Thus, as a general rule, a defendant may not collaterally attack the prior conviction
during his federal sentencing except where the attack is based on a violation of the
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right to counsel. Farris, 77 F.3d at 397; see also Custis v. United States, 511 U.S.
485, 487, 114 S. Ct. 1732, 1734 (1994).
Here, the district court did not err in counting Simmons’s three drug
possession convictions and his aggravated battery conviction under U.S.S.G.
§ 4B1.1. Simmons did not contend that any of his state convictions were obtained
in violation of his right to counsel. Nor did he show that any of these convictions
have been vacated or reversed. Simmons’s arguments that Florida Statutes
§ 893.13 is facially unconstitutional and that he is actually innocent of aggravated
battery are collateral attacks on his state convictions that may not be brought in his
federal sentencing. Accordingly, the district court correctly calculated Simmons’s
advisory guidelines range as a career offender under § 4B1.1, and Simmons has
not shown that his 188-month sentence is procedurally unreasonable.
AFFIRMED.
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