                                                         [DO NOT PUBLISH]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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