           Case: 17-13945   Date Filed: 10/22/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13945
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20383-KMW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

TIMOTHY SMITH,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (October 22, 2018)

Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges.

PER CURIAM:
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      Timothy Smith appeals the partial denial of his motion to vacate his

sentence. 28 U.S.C. § 2255. The district court vacated Smith’s sentence of 180

months of imprisonment under the Armed Career Criminal Act on the ground that

his prior conviction for attempted manslaughter no longer qualified as a crime of

violence after Johnson v. United States, 135 S. Ct. 2551 (2015), but it rejected a

similar challenge to Smith’s prior conviction for armed robbery as foreclosed by

United States v. Fritts, 841 F.3d 937 (11th Cir. 2016). Smith argues that his newly-

imposed sentence of 108 months of imprisonment under the Sentencing Guidelines

is procedurally and substantively unreasonable. Smith also argues, for the first time

on appeal, that he did not receive notice “that 18 U.S.C. § 924(a) was going to be

used to calculate his offense level,” in violation of his right to due process under

the Fifth Amendment. We affirm.

      We review the reasonableness of a sentence under a deferential standard for

abuse of discretion. United States v. Azmat, 805 F.3d 1018, 1047 (11th Cir. 2010).

We review whether the district court committed a procedural error, such as failing

to calculate the guideline range or to explain the chosen sentence, and then we

examine whether the sentence is substantively reasonable. Gall v. United States,

552 U.S. 38, 51 (2007). “When a party raises an argument for the first time on

appeal, this Court reviews for plain error.” United States v. Lange, 862 F.3d 1290,

1293 (11th Cir.), cert. denied, 138 S. Ct. 488 (2017). To prevail under that


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standard, the defendant must prove that an error occurred that is plain and that

affects his substantial rights. Id.

       The district court did not procedurally err by counting Smith’s prior

conviction for armed robbery as a predicate offense when determining his base

offense level under the Guidelines. As Smith concedes, his prior conviction for

armed robbery, Fla. Stat. § 812.13(2), qualifies categorically as a crime of violence

under Fritts. 841 F.3d at 939–42 (discussing United States v. Dowd, 451 F.3d 1244

(11th Cir. 2006), and United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011));

United States v. Seabrooks, 839 F.3d 1326, 1338–45 (11th Cir. 2016). Fritts “is the

law of this Circuit[ and] . . . bind[s] all subsequent panels unless and until the . . .

holding is overruled by the Court sitting en banc or by the Supreme Court.”

Seabrooks, 839 F.3d at 1341 (quoting Smith v. GTE Corp., 236 F.3d 1292, 1300

n.8 (11th Cir. 2001)). Because Smith possessed a Romarm Cugir semiautomatic

rifle that “is capable of accepting a large capacity magazine . . . and [he has] at

least [one] felony conviction[] of . . . a crime of violence [and of] a controlled

substance offense,” the district court correctly calculated Smith’s sentencing range

using a base offense level of 26. See United Sentencing Guidelines Manual

§ 2K2.1(a)(1) (Nov. 2016).

       Smith asks us to stay his appeal until the Supreme Court issues its decision

in Stokeling v. United States, 138 S. Ct. 1438 (2018), but a stay is not appropriate.


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We remain bound by our precedent in Fritts despite the grant of certiorari in

Stokeling, which involves an unarmed robbery. “Until the Supreme Court issues a

decision that actually changes the law, we are duty-bound to apply this Court’s

precedent” that forecloses Smith’s challenge to his sentence. See Gissendaner v.

Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015). Smith also

argues in his reply brief that his conviction for attempted second degree murder

does not qualify as a crime of violence, but we decline to address an argument that

Smith omitted from his initial brief. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d

1338, 1342 (11th Cir. 2005).

      The district court also did not abuse its discretion by varying below Smith’s

advisory guideline range to impose a sentence of 108 months of imprisonment.

Smith pleaded guilty to being a felon in possession of a firearm and, as the district

court found, Smith had an “extensive criminal history” with convictions for

attempted manslaughter, aggravated battery of a pregnant victim, battery,

possession with intent to sell or deliver cocaine, attempted second degree murder

with a deadly weapon, and armed robbery with a firearm. The district court also

was entitled to consider other misconduct charged in Smith’s indictment, to which

he admitted by “fail[ing] to object to [the] allegations of fact in [his presentence

report],” United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006), that he sold

thousands of dollars in illegal drugs and nine firearms to undercover federal agents.


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See 18 U.S.C. § 3661 (“No limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.”). The district court considered

Smith’s argument for leniency based on “the statutory [sentencing] factors” and

“the presentence report,” which described Smith’s adolescent struggle with

hyperactivity, a sexual assault he suffered in prison, and his completion of

educational courses. See 18 U.S.C. § 3553(a). The district court also considered as

“important factor[s]” that Smith “complet[ed] . . . the Anger Management

Program, . . . [and] receiv[ed] [an] HVAC certification.” And the district court

rewarded Smith for his “steps forward . . . in prison” by varying downward and

sentencing him to a term two months below the low end of his advisory guideline

range of 110 to 120 months. Smith’s sentence, which is well below his maximum

statutory sentence of 10 years of imprisonment, is substantively reasonable.

      Smith argues, for the first time, that he was denied due process because his

indictment failed to allege that section 924(a) would “be used . . . to calculate his

offense level” at resentencing, but an indictment “need not set forth factors

relevant only to the sentencing of an offender found guilty of the charged crime,”

Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998). After Smith

succeeded in having his sentence as an armed career criminal vacated, his plea of


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guilty to possessing a firearm as a felon exposed him to a statutory sentence in

prison for up to 10 years. See 18 U.S.C. §§ 922(g), 924(a)(2); Welch v. United

States, 136 S. Ct. 1257, 1261 (2016). Smith requested a sentence less than the

statutory maximum and received the relief that he sought. The district court

committed no error, much less plain error, by using section 924(a) to calculate

Smith’s offense level.

      We AFFIRM Smith’s sentence.




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