United States v. Patrick Willie Smith

Case: 17-10500 Date Filed: 10/10/2017 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-10500
Non-Argument Calendar
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D.C. Docket No. 6:16-cr-00121-GKS-DCI-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus

PATRICK WILLIE SMITH,

Defendant - Appellant.

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Appeal from the United States District Court
for the Middle District of Florida
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(October 10, 2017)

Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
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Patrick Smith appeals his sentence of 188 months of imprisonment for being

a convicted felon in possession of a firearm. 18 U.S.C. § 922(g)(1). Smith argues

that the district court failed to elicit objections after imposing Smith’s sentence, as

required by United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990),

overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir.

1993) (en banc). Smith also argues, for the first time, that he did not have the

requisite number of predicate felonies to enhance his sentence under the Armed

Career Offender Act because his three prior drug convictions were temporally

indistinguishable. See 18 U.S.C. § 924(e). We affirm.

No Jones error occurred. Under Jones, the district court is required “to elicit

fully articulated objections, following imposition of sentence, to [its] ultimate

findings of fact and conclusions of law.” Jones, 899 F.2d at 1102. The district

court asked Jones whether there was “anything you’d like to state to the Court now

that you have been sentenced,” and Jones responded, “as far as my appeal process .

. . I feel as though my enhancement was unconstitutional and brought to my right

to due process[.]” See United States v. Neely, 979 F.2d 1522, 1523 (11th Cir.

1992). The district court next inquired if counsel had “anything [they] would like

to add at this time” and, after defense counsel responded negatively, the prosecutor

“request[ed] . . . [to] incorporate forfeiture in the judgment and conviction.” These

responses reflect that the parties understood that they were being invited to object

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to Smith’s sentence. See United States v. Ramsdale, 179 F.3d 1320, 1324 n.3 (11th

Cir. 1999). The district court complied with Jones.

Smith’s objection did not apprise the district court that he was disputing

whether his drug offenses were temporally distinct. To preserve an issue for

appeal, a defendant must “raise that point in such clear and simple language that

the trial court may not misunderstand it.” United States v. Riggs, 967 F.2d 561, 565

(11th Cir. 1992). Because Smith “fail[ed] to clearly state the grounds for [his]

objection in the district court, . . . we are limited to reviewing for plain error.” See

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). Under that standard,

Smith must prove that an error occurred that was plain and that affects his

substantial rights. See United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.

2005). ‘If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if [] the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)).

The district court did not plainly err by enhancing Smith’s sentence. Smith

admitted to the facts contained in his presentence investigation report when he and

his attorney each replied “No, sir,” when asked if “there [is] anything regarding the

contents of the report that you would like to place on the record.” See United States

v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). The presentence report stated that

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Smith had prior convictions for serious drug offenses for which he was arrested on

February 24, 1998, June 12, 1998, and October 23, 2000. See 18 U.S.C. 924(e);

United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir. 2010). And the district

court stated that Smith’s sentence was based on the information in his presentence

report, which catalogued “35 prior convictions” and provided “an offense level of

30[ and] a criminal history category VI with an imprisonment range from 180

months to 210 months” because “under the statute [he faced] a mandatory

minimum 15 years.” See Shelton, 400 F.3d at 1330 (holding under plain-error

review that the district court did not err under the Sixth Amendment because the

defendant admitted to the drug quantities during his change of plea and sentencing

hearings and did not object to the factual accuracy of his presentence report). The

district court did not plainly err by relying on the uncontested facts in Smith’s

presentence report to sentence him as an armed career offender.

We AFFIRM Smith’s sentence.