UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILLIAM KIMMONS, HOWARD SMALL, DEFENDANTS-APPELLANTS

11th Cir. | 1993-08-26
No. 90-5413
Before FAY, Circuit Judge, DYER and CLARK, Senior Circuit Judges.
1 F.3d 1144 Court of Appeals for the Eleventh Circuit (1993) Positive Treatment
Cited by 8 cases
Opinion of the Court
BY THE COURT:

BY THE COURT: Defendants William Kimmons, Howard Small, and Bruce Lee Berta were convicted of conspiracy to rob armored ear companies and related firearms offenses.

In United States v. Kimmons, 965 F. 2d 1001 (11th Cir. 1992), we affirmed defendants’ convictions and sentences.

Defendant Howard Small filed a petition for writ of certiorari.

The Supreme Court granted certiorari, vacated our judgment, and remanded the case for further consideration in light of Stinson v. United States, 508 U.S. -, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

Small v. United States, — U.S. -, 113 S.Ct. 2326, 124 L.Ed.2d 239 (1993).

At issue in Stinson was the definition of “crime of violence” as that term is used in the sentencing guidelines career offender provision, U.S.S.G. § 4B1.1.

The commentary to the guidelines provides that “[tjhe term ‘crime of violence’ does not include the offense of unlawful possession of a firearm by a felon.” U.S.S.G. § 4B1.2, comment, (n. 2).

The Court of Appeals had held that this commentary, though “persuasive,” was not “binding” on the federal courts. 957 F. 2d 813, 815 (11th Cir.1992).

The Supreme Court disagreed, holding that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” 508 U.S. at -, 113 S.Ct. at 1915.

The Supreme Court concluded that the commentary at issue was a binding interpretation of the phrase “crime of violence” as used in § 4B1.1.

In his petition for writ of certiorari filed with the Supreme Court, defendant Howard Small raised, as Issue II, the application of the career offender provision, § 4B1.1, in his case.

Specifically, he argued that this court “erroneously held that possession of a weapon by a convicted felon is a crime of violence for purposes of sentencing under section 4B1.1 of the Sentencing Guidelines.”

Petition for Writ of Certiorari at 11.

This court did not render any such holding.

Small raised the § 4B1.1 issue in this court for the first time in his reply brief; Small’s initial appellate brief filed with this court does not even mention § 4B1.1.

Because arguments raised for the first time in a reply brief are not properly before the reviewing court, United States v. Benz, 740 F. 2d 903, 916 (11th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985), we did not address the § 4B1.1 issue in our opinion.

In any event, the issue is without merit.

The “crime of violence” upon which Small’s career offender treatment is based is his conviction of conspiracy to rob armored car companies, not his conviction of firearms possession.

Accordingly, the commentary at issue in Stinson has no relevance to Small’s case.

We have carefully reviewed our decision in United States v. Kimmons, 965 F. 2d 1001.

We conclude that the decision is consistent with Stinson, as we treated as authoritative any commentary relevant to the sentencing issues raised by defendants.

Accordingly, having considered our decision in light of Stinson, we conclude that neither our decision nor our opinion, 965 F. 2d 1001, is affected by Stinson.

See United States v. M.C.C. of Florida, Inc., 967 F. 2d 1559, 1562 (11th Cir.1992); Jones v. American Broadcasting Companies, Inc., 961 F. 2d 1546 (11th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 971, 122 L.Ed.2d 126 (1993).

We reinstate our judgment affirming defendants’ convictions and sentences.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • United States v. Veltmann, 6 F.3d 1483 (11th Cir. 1993)
    …1068, 25 L.Ed.2d 368 (1970); Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895); United States v. Dilg, 700 F. 2d 620 (11th Cir.1983). The issue was waived by defendants’ failure to raise it earlier. United States v. Kimmons, 1 F. 3d 1144, 1145-46 (11th Cir.1993); United States v. Benz, 740 F. 2d 903, 916 (11th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985). We recognize that a visiting judge heard the-ease, and that it will be retried before another. Cons…
  • United States v. Cover, 199 F.3d 1270 (11th Cir. 2000)
    …omment, (n.3) (1998). Amount of loss must be proven by a preponderance of the evidence. See United States v. Kimmons, 965 F. 2d 1001, 1011 (11th Cir.1992), vacated on other grounds, 508 U.S. 902, 113 S.Ct. 2326, 124 L.Ed.2d 239 (1993), reinstated, 1 F. 3d 1144 (11th Cir.1993). In Kimmons, we upheld a district court’s finding that the amount of loss from an attempted robbery of an armored car amounted to approximately $500,000 based on “[testimony from managers of [the] intended victim corporations [that…
  • United States v. Luiz, 102 F.3d 466 (11th Cir. 1996)
    …ossessed firearms), cert. denied, 506 U.S. 1086, 113 S.Ct. 1065, 122 L.Ed.2d 370, cert. granted, judgment vacated and case remanded on other grounds sub nom. Small v. United States, 508 U.S. 902, 113 S.Ct. 2326, 124 L.Ed.2d 239, judgment reinstated, 1 F. 3d 1144 (11th Cir.1993); see also Aduwo, 64 F. 3d at 629-30 (gun conspiracy defendant’s base offense level increased under § 2K2.1(c) where co-conspirator possessed a firearm); United States v. Otero, 890 F. 2d 366, 367 (11th Cir.1989) (drug conspiracy defe…

Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw