           Case: 14-10717   Date Filed: 02/11/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10717
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:13-cr-20435-KMW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ALFRED LEONCE MARCEL VIAUD,

                                                         Defendant-Appellant.

                       ________________________

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

                            (February 11, 2015)

Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Alfred Viaud appeals his 151-month sentence imposed after he pled guilty to

possession with intent to distribute a controlled substance under 21 U.S.C.

§ 841(a)(1). Viaud was designated a career offender at sentencing, and he

contends on appeal both that the career offender guideline is a non-existent penalty

and that the district court erred by designating two of his predicate offenses as

crimes of violence under the career offender guideline. 1 We address each issue in

turn, and after review, affirm Viaud’s sentence.

                                       I. DISCUSSION

A. Career offender guideline is a non-existent penalty

       For the first time on appeal, Viaud contends his career offender

classification is “a non-existent penalty” because it conflicts with the notice

requirement found in 21 U.S.C. § 851(a)(1), is not listed in his statute of

conviction, and violates due process by not requiring notice. This Court reviews

issues not raised before the district court for plain error. United States v. Madden,

733 F.3d 1314, 1319 (11th Cir. 2013).

       A defendant qualifies as a career offender under the Sentencing Guidelines if

“(1) the defendant was at least eighteen years old at the time the defendant

committed the instant offense of conviction; (2) the instant offense of conviction is


       1
         Viaud also asserts the appeal waiver provision in his plea agreement is invalid and
unenforceable because the district court failed to discuss it with him during the Rule 11 plea
colloquy. The Government concedes this issue.
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a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant 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). Viaud argues

§ 4B1.1(a) conflicts with 21 U.S.C. § 851(a)(1), which states:

      No person who stands convicted of an offense under this part shall be
      sentenced to increased punishment by reason of one or more prior
      convictions, unless before trial, or before entry of a plea of guilty, the
      United States attorney files an information with the court (and serves
      a copy of such information on the person or counsel for the person)
      stating in writing the previous convictions to be relied upon.

21 U.S.C. § 851(a)(1).

      In Young v. United States, 936 F.2d 533, 535 (11th Cir. 1991), the appellant

argued the government was required to comply with § 851(a)(1)’s notice

requirement before using prior convictions to classify him as a career offender

under the Sentencing Guidelines. We rejected the argument, holding the

government only needed to follow the notice requirements of § 851(a)(1) when it

intended to enhance a defendant’s statutory minimum or maximum penalty. The

government was not required to follow the notice requirements when a defendant

received an enhanced sentence as a career offender under the guidelines, so long as

the enhanced sentence was still within the permissible statutory range. Id. at 535-

36.

      Viaud’s 151-month sentence was well below the applicable 240-month

statutory maximum, see 21 U.S.C. § 841(b)(1)(C), and we are bound to follow
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Young’s precedent, see United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th

Cir. 2008) (stating, under the prior-precedent rule, this Court is bound to follow its

prior binding precedent unless and until it is overruled by this Court sitting en banc

or by the Supreme Court). Contrary to Viaud’s contention otherwise, Young’s

rationale is not undercut by the Sentencing Guidelines now-advisory status. See

United States v. Booker, 543 U.S. 220, 258-59 (2005) (holding the Sentencing

Guidelines are advisory, not mandatory). Moreover, no decision of this Court or

the Supreme Court has held the career offender provision conflicts with §

851(a)(1), is “a non-existent penalty,” or that utilizing the career offender provision

without complying with § 851(a)(1) violates due process. Thus, even assuming,

arguendo, the district court erred in employing § 4B1.1, the error was not plain.

See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (“It is the

law of this circuit that, at least where the explicit language of a statute or rule does

not specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.”).

B. Predicate offenses

       Viaud next contends his sentence was procedurally and substantively

unreasonable2 because he did not have the two predicate felonies necessary to be


       2
         Viaud makes no other reasonableness arguments, rather than arguing his sentence “was
procedurally and substantively unreasonable” because the prior offenses were not valid
predicates.
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considered a career offender. First, he asserts his burglary of a dwelling conviction

was not a crime of violence because there was no evidence that he had the

intention to commit a burglary after entering the premises. Second, he argues his

conviction for fleeing and eluding police lights and sirens does not qualify as a

crime of violence. Where a defendant fails to object to his prior convictions being

considered crimes of violence, 3 we review only for plain error. United States v.

Pantle, 637 F.3d 1172, 1174 (11th Cir. 2011).

       Viaud was considered a career offender due to three predicate offenses under

Florida law—(1) a 2009 controlled substance offense, “sale or delivery of cocaine

with intent,” (2) a 2012 guilty plea to “fleeing and eluding police lights and

sirens,” and (3) a 2004 guilty plea to burglary of a dwelling.

       Only two valid predicate offenses are necessary to invoke the career

offender guideline, and Viaud does not challenge that the controlled substance

offense qualifies as a predicate offense. See U.S.S.G. § 4B1.1(a). Thus, if one of

the challenged offenses qualifies as crime of violence, the career offender


       3
           Viaud filed a pro se objection to the applicability of the career offender guideline,
specifically challenging his two predicate crimes of violence, but his counsel withdrew the
objection at sentencing. Viaud’s withdrawal is factually distinguishable from United States v.
Masters, 118 F.3d 1524, 1526 (11th Cir. 1997), where a defendant indicated he wished to
withdraw an objection that his attorney had made and not the other way around, but Viaud may
have waived his objection to the classification of his prior convictions as crimes of violence, see
id. (stating a defendant waives his objection and it will not be considered on appeal if he raises,
then knowingly withdraws, an objection to his sentence). We decline to decide the issue of
whether Viaud knowingly waived the objection because Viaud’s claim fails under the plain error
standard.
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designation applies. This Court has held that a conviction under § 316.1935(2),

Florida Statutes, such as Viaud’s fleeing and eluding police conviction, constitutes

a violent felony under the Armed Career Criminal Act’s (ACCA) residual clause.

United States v. Petite, 703 F.3d 1290, 1291 (11th Cir. 2013). We reasoned that

“simple vehicle flight from a flashing patrol car presents a serious potential risk of

physical injury comparable to the ACCA’s enumerated crimes of burglary and

arson.” Id. at 1301. This same reasoning also applies when determining whether

such a conviction falls under § 4B1.2’s identical residual clause. See United States

v. Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010) (noting the residual clauses in

the ACCA’s “violent felony” definition and the career offender guideline’s “crime

of violence” definition are identical, so we will look to opinions applying the

ACCA in considering whether an offense qualifies as a crime of violence under the

career offender guideline). Accordingly, the district court did not plainly err in

determining that Viaud’s fleeing and eluding conviction was a crime of violence

under the career offender guideline. Since only two valid predicate offenses are

necessary to invoke the career offender guideline, it is unnecessary to analyze

whether the district court erred in classifying his burglary of a dwelling conviction

as a crime of violence.




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                               II. CONCLUSION

      Accordingly, Viaud had at least two predicate felonies and the district court

did not err in classifying him as a career offender. See U.S.S.G. § 4B1.1(a). We

affirm his sentence.

      AFFIRMED.




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