           Case: 11-11164   Date Filed: 07/25/2012   Page: 1 of 10




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-11164
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:10-cr-00374-JDW-TGW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DAVID LEON SMITH, JR.,

                                                          Defendant-Appellant.

                      ________________________

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

                              (July 25, 2012)

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:
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      After pleading guilty, Defendant David Leon Smith, Jr. appeals his 204-

month sentence for (1) distribution of crack cocaine in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C) (Count One), (2) distribution of five grams or more of

crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count Two),

and (3) possession of five grams or more of crack cocaine with the intent to

distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii)(Count Three).

On appeal, Smith challenges the district court’s application of a dangerous weapon

enhancement and contends that the district court should have applied the penalty

provisions in 21 U.S.C. § 841(b) as amended by the Fair Sentencing Act (“FSA”).

After review, we affirm Smith’s dangerous weapon enhancement, but vacate and

remand for resentencing in light of Dorsey v. United States, ____ U.S. ____, ____

S. Ct. ____, Nos. 11-5683, 11-5721 (U.S. June 21, 2012).

                               I. BACKGROUND

A.    Offense Conduct

      In May 2010, detectives with the Hillsborough County, Florida Sheriff’s

office received information that Defendant Smith was distributing crack cocaine.

Later that month, on May 25, 2010, undercover detectives contacted Smith and

arranged the purchase of 1.4 grams of crack cocaine from him. Smith arrived at

the prearranged location and sold the detectives the agreed amount. Two days

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later, on May 27, 2010, after the detectives contacted him again, Smith met with

the detectives and delivered an additional 14.4 grams of crack cocaine.

      On June 2, 2010, law enforcement executed a search warrant on Smith’s

residence and recovered 26.8 grams of crack cocaine, 384 grams of marijuana, a

box of baggies, a digital scale, and an unloaded Beretta USA Corp. 22 Long Rifle

caliber pistol. Every item except the pistol was found in the master bedroom. The

pistol was found on top of the refrigerator near the front door. Smith admitted

ownership of the drugs.

      On September 9, 2010, a grand jury indicted Smith on the above three

counts. Smith’s May 25, 2010 and May 27, 2010 drug sales formed the basis of

Counts One and Two, respectively. The crack cocaine found in Smith’s residence

formed the basis for Count Three. Subsequently, the government filed a notice of

prior convictions, pursuant to 21 U.S.C. § 851(a), outlining Smith’s five previous

felony drug offenses that the government planned to rely upon at sentencing.

Smith pled guilty to all three counts.

B.    Presentence Investigation Report

      Smith’s presentence investigation report (“PSI”) initially calculated his base

offense level as 26 based on the total amount of crack cocaine involved (42.6

grams) in Smith’s three counts (1.4 grams in Count One, 14.4 grams in Count Two

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and 26.8 grams in Count Three). See U.S.S.G. § 2D1.1(c)(7). The PSI then

increased Smith’s offense level by two levels due to the presence of a dangerous

weapon, resulting in an adjusted offense level of 28. See U.S.S.G. § 2D1.1(b)(1).

Because Smith qualified as a career offender due to his prior felony convictions,

the PSI reset the offense level at 37 based on Smith’s statutory maximum life

sentence under § 841(b)(1)(B)(iii). See U.S.S.G. § 4B1.1.1 After decreasing

Smith’s offense level by three levels for acceptance of responsibility under

U.S.S.G. § 3E1.1(a) and for timely notification of intent to plead guilty under

U.S.S.G. § 3E1.1(a) and (b), the PSI calculated Smith’s total offense level as 34.

       The PSI assigned Smith a criminal history category VI based on either

Smith’s lengthy criminal history or, alternatively, his career offender status. With


       1
         The career offender provision assigns offense levels based on the defendant’s statutory
maximum sentence and instructs the sentencing court to apply that offense level if it is greater
than the otherwise-applicable offense level, as follows:
        Except as provided in subsection (c), if the offense level for a career offender
        from the table in this subsection is greater than the offense level otherwise
        applicable, the offense level from the table in this subsection shall apply. A career
        offender’s criminal history category in every case under this subsection shall be
        Category VI.
               Offense Statutory Maximum                               Offense Level
               (1)      Life                                                   37
               (2)      25 years or more                                       34
               (3)      20 years or more, but less than 25 years               32
               (4)      15 years or more, but less than 20 years               29
               (5)      10 years or more, but less than 15 years               24
               (6)      5 years or more, but less than 10 years                17
               (7)      More than 1 year, but less than 5 years                12.
U.S.S.G. § 4B1.1(b)(footnote omitted).

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an offense level of 34 and a criminal history category of VI, the PSI recommended

an advisory guidelines range of 262 to 327 months.

C.    Smith’s Objection

      Smith did not object to the underlying facts in the PSI. Relevant to this

appeal, Smith objected to the two-level dangerous weapon enhancement. Smith

also filed a motion requesting the district court to apply provisions of the Fair

Sentencing Act that went into effect August 3, 2010, after he committed the

charged offenses, but before he was sentenced.

      Prior to the FSA, if a defendant’s § 841(a) offense involved 5 or more grams

of crack cocaine and the defendant had a prior felony drug conviction, he was

subject to a ten-year mandatory minimum sentence and a statutory maximum life

sentence. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). The FSA, among other

things, raised the amount of crack cocaine in § 841(b)(1)(B)(iii) to 28 grams or

more. See Fair Sentencing Act of 2010, Pub. L. No. 111-220 § 2(a), 124 Stat.

2372 (2010). Thus, after the FSA, if a defendant’s § 841(a) offense involved less

than 28 grams of crack cocaine and he had a prior felony drug conviction, he was

not subject to any mandatory minimum sentence and his statutory maximum

sentence was thirty years’ imprisonment, not life. See 21 U.S.C. § 841(b)(1)(C).

      Further, a defendant’s statutory maximum sentence for each § 841(a) count

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is determined based on the amount of drugs involved in only that § 841(a)

violation. See 21 U.S.C. § 841(b). Smith was charged with three separate

§ 841(a) offenses occurring on three different days. Although the total drug

quantity in Smith’s three § 841(a) offenses was 42.6 grams of crack cocaine under

the guidelines calculations, each § 841(a) offense still involved less than 28 grams

for purposes of calculating the statutory maximum.2

       Here, Smith’s sentencing objection argued that, after the FSA, Smith was no

longer subject to any mandatory minimum sentence on Counts Two and Three.

       Smith also contended, based on his new thirty-year statutory maximum

under the FSA, that his offense level under the career offender guideline, U.S.S.G.

§ 4B1.1(b), was 34, not 37. Smith claimed that, after the three-level reduction for

acceptance of responsibility, his total offense level should have been 31, which

would yield an advisory guidelines range of 188 to 235 months.

D.     Sentencing

       At a March 9, 2011 sentencing hearing, Smith reiterated his objection to the

two-level dangerous weapon enhancement. Neither party presented testimony.

Smith argued that “although he was residing in the residence he was in a different


       2
       The Sentencing Guidelines group multiple § 841(a) counts together and calculate the
defendant’s base offense level based on the total drug quantity. See U.S.S.G. §§ 2D1.1,
3D1.2(d).

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location. The weapon was not found on him.”

      After questioning by the district court, Smith admitted that the firearm was

found at Smith’s residence, which he shared with his girlfriend. Smith did not

dispute that “incident to the search warrant, drugs, paraphernalia, and a firearm

were found inside the residence connecting the residence to the drug activity.”

The district court asked Smith if he had any evidence to “demonstrate that the

connection between the gun and the offense was . . . clearly improbable.” Smith

responded that he did not, and the district court overruled his objection.

      The district court also denied Smith’s motion to apply the FSA. The district

court stated that, based on this Court’s precedent in United States v. Gomes, 621

F.3d 1343 (11th Cir. 2010), it was “bound to apply the minimum mandatory

penalties that apply to the offense committed prior to enactment of the FSA.”

      Smith then argued that he should receive a 120-month sentence based on the

sentencing disparity between crack and powder cocaine and the 18 U.S.C.

§ 3553(a) factors. Before sentencing, the district court discussed Smith’s personal

and criminal history, the seriousness of the charged offenses, the need for public

protection, and Smith’s potential for rehabilitation. Although the district court

found the applicable guidelines range to be 262 to 327 months’ imprisonment, the

court stated that “even . . . the low end of the advisory range is extraordinarily

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severe.” The district court varied downward by 58 months and sentenced Smith to

204 months for each of the three counts, to run concurrently.

                                     II. DISCUSSION

A.     Dangerous Weapon Enhancement

       Smith argues that the district court erred in applying the two-level

dangerous weapon enhancement under U.S.S.G. § 2D1.1(b)(1).3 We disagree.

       Under U.S.S.G. § 2D1.1(b)(1), a defendant’s offense level increases by two

levels “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G.

§ 2D1.1(b)(1). The two-level increase applies “if the weapon was present, unless

it is clearly improbable that the weapon was connected with the offense.” Id.

§ 2D1.1, cmt. n.3(A). Once the government demonstrates by a preponderance of

the evidence that the firearm was present at the site of the charged conduct, the

burden shifts to the defendant to show that a connection between the firearm and

the offense is clearly improbable. United States v. Stallings, 463 F.3d 1218, 1220

(11th Cir. 2006).

       The PSI’s undisputed facts established that officers recovered the firearm

from Smith’s residence along with a large quantity of crack cocaine, a scale, and


       3
        We review for clear error the district court’s findings of fact under U.S.S.G.
§ 2D1.1(b)(1), and we review de novo the application of the Sentencing Guidelines to those
facts. United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006).

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small plastic baggies. Although the firearm was not in the same room as the drugs

and the distribution paraphernalia, it was stored on top of the refrigerator next to

the front door. These facts are sufficient to carry the government’s burden to show

that the firearm was present at the site of Smith’s charged drug activities. See

United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (concluding

firearms were present at the site of the charged drug trafficking where they were

found in defendant’s home along with plastic baggies, glass vials, mixing spoons,

diluting agent, and transaction records); United States v. Trujillo, 146 F.3d 838,

847 (11th Cir. 1998) (concluding firearm was present where defendant’s loaded

gun was found in an office adjacent to the area where the cocaine was discovered).

In contrast, Smith presented no evidence to suggest that the connection between

the firearm and the drug offenses was clearly improbable.

       In any event, any alleged error was harmless. The district court ultimately

calculated Smith’s offense level based on U.S.S.G. § 4B1.1, the career offender

provision, and not on U.S.S.G. § 2D1.1. On appeal, Smith does not challenge that

he qualified as a career offender under the advisory guidelines.4 Thus, any alleged

       4
        As discussed herein, Smith does challenge his statutory maximum sentence under the
FSA and what offense level should apply due to his career offender status, but he does not
challenge his status as a career offender. And, even with a reduced statutory maximum of thirty
years, Smith’s career offender offense level of 34 under U.S.S.G. § 4B1.1(b) will still exceed his
adjusted offense level of 28 under U.S.S.G. § 2D1.1. Again, this is why the alleged error is
harmless.

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error in the district court’s application of the dangerous weapon enhancement did

not affect Smith’s advisory guidelines range.

B.     Fair Sentencing Act

       At sentencing, the district court declined to apply the penalty provisions in

21 U.S.C. § 841(b) as amended by the FSA because Smith committed his crack

cocaine offenses in May 2010, before the FSA’s August 3, 2010 effective date.

The Supreme Court recently held that the FSA’s “more lenient penalty provisions

apply to offenders who committed a crack cocaine crime before August 3, 2010,

but were not sentenced until after August 3.” Dorsey v. United States, ____ U.S.

____, ____ S. Ct. ____, Nos. 11-5683, 11-5721, slip op. at 2 (U.S. June 21, 2012).

While in most cases the FSA affects whether a mandatory minimum sentence

applies, the FSA here affects Smith’s statutory maximum sentence and in turn

what offense level in § 4B1.1 should be used due to Smith’s admitted career

offender status. Those calculations and the ultimate sentence should be addressed

by the district court in the first instance. We therefore vacate Smith’s sentences

and remand for the limited purpose of resentencing in light of Dorsey.5

       AFFIRMED IN PART; VACATED IN PART AND REMANDED.



       5
        Because we vacate Smith’s 204-month sentence, we do not address his argument that his
sentence was unreasonable.

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