[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14418 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 7, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 7:10-cr-00007-WLS-TQL-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
WILLIE STEPHENS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 7, 2012)
Before TJOFLAT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Willie Stephens was convicted on a plea of guilty of possession with intent
to distribute more than 500 grams of cocaine, in violation of 21 U.S.C.
§ 841(a)(1). At sentencing, the district court classified Stephens as a career
offender, pursuant to U.S.S.G. § 4B1.1(a), and sentenced him as such to a prison
term of 188 months1 because he was over 18 years of age, the instant conviction
was for a controlled substance offense, and he previously had been convicted of
two controlled substance offenses in the Broward County, Florida Circuit Court;
to-wit, a 1999 conviction for trafficking cocaine and a 2008 conviction for
delivery of cocaine, in violation of Fla. Stat. § 893.13. Stephens now appeals his
sentence, claiming that the district court erred in classifying him as a career
offender. We find no error and affirm.
Stephens argues that the court erred in treating his 2008 offense as predicate
career offender offense because a judge of the U.S. District Court for the Middle
District of Florida and a judge of the Twelfth Judicial Circuit of Florida have
declared § 893.13 unconstitutional, and the Florida Supreme Court has accepted
jurisdiction in the latter case, Florida v. Atkins, No. SC11-1878, 71 So.3d 117,
2011 WL 4925888 (Fla. Oct. 12, 2011). Neither trial court decision is controlling
here; hence, the district court did not err in using the 2008 offense as a predicate
1
The sentence was at the bottom of the Guidelines sentence range of 188 to 235 months’
imprisonment.
2
offense under U.S.S.G. § 4B1.1(a).2 Stephens argues that the court erred in using
his 1999 conviction as a predicate offense because he was sentenced as a youthful
offender. The problem with this argument is that his lawyer conceded at
sentencing that the conviction qualified as a predicate career offender offense.
Stephens is bound by that concession. His sentence is, accordingly,
AFFIRMED.
2
Because Stephens did not present this argument to the district court we review it under
the plain error standard. There could be no plain error here because no error occurred.
3