[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-15148

Non-Argument Calendar

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D.C. Docket No. 4:18-cr-00052-MW-CAS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

PATRICK LEMUEL BASS, 

a.k.a. Lem,

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(December 28, 2020)

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Before JILL PRYOR, LAGOA and ANDERSON, Circuit Judges.

PER CURIAM: 

Patrick Bass petitioned the panel for rehearing of the opinion that affirmed 

his sentence. We grant the petition, vacate our earlier opinion, and substitute for it 

the following opinion. 

Defendant Patrick Bass appeals his 96-month sentence imposed following 

his guilty plea for conspiring to possess with intent to distribute methamphetamine. 

The district court sentenced Bass pursuant to the career-offender enhancement in 

the Sentencing Guidelines. See U.S.S.G. § 4B1.1. On appeal, Bass argues that the 

district court erred in sentencing him as a career offender because he did not have 

two prior felony convictions. We affirm. 

I.

Bass was charged in an indictment with conspiring to possess with intent to 

distribute a controlled substance. The charged conspiracy involved 50 grams or 

more of methamphetamine and 500 grams or more of a mixture and substance 

containing a detectable amount of methamphetamine. The indictment alleged that 

the conspiracy took place between on or about April 1, 2017, and August 28, 2018. 

Bass pled guilty to the conspiracy charge. Along with Bass’s plea 

agreement, the parties filed with the court an agreed-upon statement of facts that 

detailed the factual basis for the plea. In the statement of facts, Bass admitted that

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he, along with others, had been trafficking methamphetamine in the Perry, Florida 

area. The document reflected that at trial the government would have presented 

evidence showing that Bass began selling and distributing methamphetamine 

beginning in April 2017 and continued to do so until at least February 2018.

After Bass pled guilty, a probation officer prepared a presentence 

investigation report (“PSI”), which described Bass’s offense conduct, detailed his 

criminal history, and calculated his sentence under the Sentencing Guidelines. The 

PSI described Bass’s participation in the charged conspiracy to possess with intent 

to distribute methamphetamine. It described incidents in which Bass sold and 

worked with others to distribute methamphetamine and showed that his 

participation in the conspiracy began in April 2017. 

The portion of the PSI detailing Bass’s criminal history showed that, among 

other convictions, Bass had been convicted of distributing a controlled substance, 

attempting to manufacture methamphetamine, and aggravated assault. The PSI 

reflected that Bass had a 2001 Alabama conviction for distribution of a controlled 

substance; he had pled guilty to possessing, selling, delivering, furnishing, and 

manufacturing 28 grams or more of methamphetamine. For this offense, Bass was 

sentenced to 10 years’ imprisonment and served more than three years in prison. 

The PSI also reflected that in March 2005, Bass was charged in Georgia 

with several crimes including criminal attempt to manufacture methamphetamine. 

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After being held in a county jail for about two months awaiting trial, Bass attacked 

a jail employee and escaped. He was found a few days later in Alabama. When 

Bass was apprehended, he was charged in a separate Georgia state criminal case 

with aggravated assault and escape arising out of this incident. In September 2007, 

Bass was found guilty and sentenced to concurrent 20-year sentences in the 

attempted manufacture of methamphetamine and escape cases.

1

 At the time when

Bass was sentenced in these cases, he was already in federal custody, serving a 

sentence imposed after he, as a felon, illegally possessed a firearm in violation of 

18 U.S.C. § 922(g)(1).2

The PSI calculated Bass’s sentence under the Sentencing Guidelines. 

Regarding Bass’s offense level, the PSI found that he was a career offender 

because he had at least two prior felony convictions for offenses that were either 

controlled substance offenses or crimes of violence. The PSI identified three 

predicate offenses: (1) the 2001 Alabama conviction for distribution of a 

controlled substance, (2) the 2007 Georgia conviction for attempt to manufacture 

methamphetamine, and (3) the 2007 Georgia conviction for aggravated assault. 

1 Bass was also sentenced to 10 years of probation on the escape charge. The Georgia 

Supreme Court later held that this sentence was illegal and void because it exceeded the statutory 

maximum. See Bass v. State, 709 S.E.2d 767 (Ga. 2011). The Georgia Supreme Court’s 

decision left in place Bass’s conviction or sentence on the aggravated assault charge. 

2 Bass’s felon-in-possession charge arose out of a separate incident that is not relevant to 

this appeal. 

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After applying the enhancement, the PSI calculated Bass’s guidelines range as 262 

to 327 months’ imprisonment.

Bass objected to the PSI, challenging, among other things, the application of 

the career-offender enhancement. Bass did not dispute that his 2001 conviction for 

distributing a controlled substance qualified as a predicate offense. But he argued 

that he had no second qualifying predicate offense because his 2007 conviction for 

attempting to manufacture methamphetamine did not meet the definition of a 

controlled substance offense and his 2007 conviction for aggravated assault did 

meet the definition of a crime of violence. The district court disagreed, concluding 

that attempting to manufacture methamphetamine qualified as a controlled 

substance offense and aggravated assault qualified as a crime of violence. Because 

Bass had at least two prior felony convictions for controlled substance offenses or 

crimes of violence, the court applied the career-offender enhancement. The district 

court adopted the PSI’s calculation of Bass’s guidelines range. 

The court ultimately imposed a sentence substantially below the guidelines 

range, sentencing Bass to 96 months’ imprisonment. After announcing the 

sentence, the district court stated that it would have imposed the same sentence

even if Bass were not a career offender. According to the court, if Bass were not a 

career offender, his guidelines range would have been 140 to 175 months’ 

imprisonment. The court explained that even under this lower range, it would have 

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imposed the same sentence, stating “I would not have given you one day less than . 

. . the 96 months.” Doc. 97 at 33.3 This is Bass’s appeal.

II.

We ordinarily review de novo whether a prior conviction qualifies as a 

predicate offense for purposes of the career-offender enhancement. See United 

States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017). But we “consider sentence 

objections raised for the first time on appeal under the plain error doctrine.” 

United States v. Hansley, 54 F.3d 709, 715 (11th Cir. 1995) (internal quotation 

marks omitted).

III.

Under the Sentencing Guidelines, a defendant is eligible for the careeroffender enhancement if 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). For 

purposes of the career-offender enhancement, a defendant has “two prior felony 

convictions” if (1) he “committed the instant offense of conviction subsequent to 

sustaining at least two felony convictions of either a crime of violence or a 

controlled substance offense” and (2) “the sentences for at least two of the 

aforementioned felony convictions are counted separately under the provisions of 

§ 4A1.1(a), (b), or (c).” Id. § 4B1.2(c). 

3 “Doc.” numbers refer to the district court’s docket entries.

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Bass argues that the district court erred in applying the enhancement because 

he did not have two prior felony convictions. He concedes that his 2001 

conviction for distribution of a controlled substance qualified as a prior felony 

conviction for purposes of the career-offender enhancement. But Bass says he had 

no second qualifying predicate conviction. He argues that the district court erred 

in treating his 2007 Georgia conviction for attempt to manufacture 

methamphetamine as a predicate conviction because (1) the crime for which he 

was convicted was not a “controlled substance offense,” and (2) the conviction did 

not score any criminal history points under § 4A1.1(a), (b), or (c). Because Bass’s 

conviction for attempt to manufacture methamphetamine was a controlled 

substance offense and scored at least one criminal history point under § 4A1.1, we 

conclude that it qualified as a prior felony conviction for purposes of the careeroffender enhancement.

4

 

A.

We begin by addressing Bass’s argument that his 2007 conviction for 

attempt to manufacture methamphetamine did not qualify as a controlled substance 

4 Bass also argues that his 2007 conviction for aggravated assault did not qualify as a 

prior felony conviction for purposes of the career-offender enhancement. Because we conclude 

that Bass has two qualifying felony convictions—his 2001 conviction for distribution of a 

controlled substance and 2007 conviction for attempt to manufacture methamphetamine—we 

need not decide whether the aggravated assault conviction also qualified as a prior felony 

conviction. 

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offense for purposes of the career-offender guideline. Our precedent forecloses 

Bass’s challenge.

Under the Sentencing Guidelines, a “controlled substance offense” is

an offense under federal or state law, punishable by imprisonment for 

a term exceeding one year, that prohibits the manufacture, import, 

export, distribution, or dispensing of a controlled substance . . . or the 

possession of a controlled substance . . . with intent to manufacture, 

import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b). Application Note 1 to the commentary to § 4B1.2 states that 

this definition also includes attempt crimes. See id. § 4B1.2 cmt. n.1 (defining 

“controlled substance offense” to “include the offenses of . . . attempting to 

commit such offenses.”).

Bass acknowledges that Application Note 1 adds attempt crimes to the list of 

controlled substance offenses. But, Bass says, this commentary to the Guidelines 

cannot broaden the definition of a controlled substance offense because

“[c]ommentary should only interpret the guidelines, not replace or modify the 

guidelines.” Appellant’s Br. at 15–16. He points to a recent en banc decision from 

the Sixth Circuit holding that attempt crimes do not qualify as controlled substance 

offenses for purposes of the career-offender guideline. See United States v. Havis, 

927 F.3d 382, 387 (6th Cir. 2019) (en banc). 

Bass’s argument is foreclosed by binding precedent, our decision in United 

States v. Smith, 54 F.3d 690 (11th Cir. 1995). In Smith, a defendant who was 

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sentenced as a career offender appealed his sentence, arguing that a conviction for 

attempting to commit a drug crime did not count as a predicate offense for 

determining career-offender status. Id. at 691. We rejected his challenge, 

explaining that Application Note 1 to the commentary to § 4B1.2 stated that the 

term “controlled substance offense” included the offenses of attempting to commit 

narcotic crimes. Id. at 693. We held that this commentary was “authoritative 

unless it violate[d] the Constitution or a federal statute, or [was] inconsistent with, 

or a plainly erroneous reading of, that guideline.” Id. (internal quotation marks 

omitted). Because Application Note 1 did “not run afoul of the Constitution” and 

was not “inconsistent with, or a plainly erroneous reading of, sections 4B1.1 or 

4B1.2,” we held that the commentary “constitute[d] a binding interpretation of the 

term ‘controlled substance offense.’” Id. (internal quotation marks omitted). 

Neither this Court sitting en banc nor the Supreme Court has overruled Smith, so it

remains binding precedent and forecloses Bass’s challenge that an attempt crime 

cannot be a controlled substance offense. See United States v. Vega-Castillo, 

540 F.3d 1235, 1236 (11th Cir. 2008) (“Under the prior precedent rule, we are 

bound to follow a prior binding precedent unless and until it is overruled by this 

court en banc or by the Supreme Court.” (internal quotation marks omitted)). 

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B.

Bass’s second argument is that his conviction for attempted manufacture of 

methamphetamine does not qualify as a prior felony conviction for purposes of the 

career-offender enhancement because the conviction did not score any criminal 

history points. See U.S.S.G. § 4B1.2(c) (stating that a prior conviction must earn 

criminal history points under § 4A1.1(a), (b), or (c) to qualify as a predicate 

conviction for purposes of the career-offender enhancement). To determine 

whether a prior conviction scored criminal history points, we look to § 4A1.1 of 

the Sentencing Guidelines, which directs a sentencing court to:

(a) Add 3 points for each prior sentence of imprisonment exceeding one 

year and one month.

(b) Add 2 points for each prior sentence of imprisonment of at least 

sixty days not counted in (a).

(c) Add 1 point for each prior sentence not counted in (a) or (b), up to 

a total of 4 points for this subsection.

U.S.S.G § 4A1.1. 

Under § 4A1.1, a conviction scores more than one criminal history point

only if the defendant spent at least some time in custody or confinement for the 

conviction. See United States v. Buter, 229 F.3d 1077, 1078 (11th Cir. 2000). 

Section 4A1.1 specifies that for a prior conviction to score two or three points the 

defendant must have had a “sentence of imprisonment.” U.S.S.G § 4A1.1. The 

Guidelines define “sentence of imprisonment” to mean “a sentence of 

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incarceration.” Id. § 4A1.2(b); see also id. § 4A1.2, cmt. n.2 (stating that “[t]o 

qualify as a sentence of imprisonment, the defendant must have actually served a 

period of imprisonment on such sentence”). We have explained that “physical 

confinement is a key distinction between sentences of imprisonment and other 

types of sentences.” Buter, 229 F.3d at 1078 (internal quotation marks omitted). 

We thus have held that a defendant must have served at least “one moment in 

custody or confinement” for an offense to score two or three criminal history 

points. Id. 

In addition, the Guidelines specify that for a prior conviction to score 

criminal history points—and qualify as a predicate conviction for purposes of the 

career-offender enhancement—the defendant’s sentence must have been imposed 

sufficiently close in time to when the defendant committed the current offense. 

See U.S.S.G. § 4A1.2(e). Under the Guidelines, a prior conviction for which the 

defendant received a “sentence of imprisonment exceeding one year and one 

month” earns criminal history points if the prior sentence was “imposed within 

fifteen years of the defendant’s commencement of the instant offense” or the 

defendant was incarcerated during any part of this period. See id. § 4A1.2(e)(1). 

Any other prior conviction scores criminal history points if the prior sentence “was 

imposed within ten years of the defendant’s commencement of the instant 

offense.” Id. §§ 4A1.2(e)(2). Any prior sentence that does not fall within these 

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time periods scores no criminal history points and thus does not qualify as a 

predicate offense for purposes of the career-offender enhancement. Id.

§§ 4A1.2(e)(3); 4B1.2(c).

Bass argues for the first time on appeal that his attempt to manufacture 

methamphetamine does not qualify as a predicate offense because it did not score 

any criminal history points. Because Bass failed to raise this issue below, we 

review it for plain error only.5

We cannot say that the district court erred, let alone plainly erred, in treating 

his conviction for attempted distribution of methamphetamine as a predicate 

offense. Although a Georgia state court in September 2007 sentenced Bass to a 

5 Bass argues that we should review the issue de novo because he raised it in the district 

court. We have said that “for a defendant to preserve an objection to [his] sentence for appeal, 

[he] must raise that point in such clear and simple and language that the trial court may not 

misunderstand it.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (internal 

quotation marks omitted). 

After reviewing the record in this case, we see no indication that Bass raised an objection 

in the district court that his conviction for attempted manufacture of methamphetamine did not 

qualify as a predicate offense because it scored no criminal history points. The record reflects 

that Bass submitted several rounds of objections to the PSI and the district court held three 

hearings in connection with his sentencing. A review of the record shows that Bass argued to the 

district court that his conviction for attempted manufacture of methamphetamine did not qualify 

as a predicate offense for one reason: because “[t]he guideline definition of a controlled 

substance [offense] does not include attempted crimes.” Doc. 96 at 32. 

Bass nonetheless says that he raised the issue of whether his conviction for attempted 

manufacture of methamphetamine scored any criminal history points because at the final 

sentencing hearing his attorney cited Buter to the court, saying it related to the “position already 

put forward earlier about actually having to serve time on the sentence.” Doc. 97 at 4. We are 

unpersuaded. The record reflects that Bass challenged whether other of his criminal convictions 

scored criminal history points because they were too old. We see no indication in the record that

Bass communicated to the district court that he was also arguing his conviction for attempted 

manufacture of methamphetamine scored no criminal history points.

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total of 20 years’ imprisonment for his attempted manufacture of 

methamphetamine and other charges, Bass argues that he did not receive a 

“sentence of imprisonment” because he never “spent any time in custody” for this 

crime; he remained in federal custody on a separate charge both before and after 

his Georgia state conviction. Reply Br. at 12. And, Bass says, the conviction does 

not earn one criminal history point because his sentence for the attempt to 

manufacture methamphetamine conviction was not imposed within ten years of 

when he commenced the instant offense. We need not decide whether Bass served 

a “sentence of imprisonment” for his conviction for attempted manufacture of 

methamphetamine, however. Even assuming he did not, the offense nonetheless

scored one criminal history point because the state court imposed the sentence for 

the attempted manufacture of methamphetamine within ten years of when Bass 

admittedly joined the conspiracy charged in this case. See U.S.S.G. § 4A1.2(e)(2). 

To determine whether an offense falls within the applicable time period to 

earn a criminal history point and qualify as a predicate offense for purposes of the 

career-offender enhancement, “we count back from the commencement of the 

instant offense—when the defendant began the ‘relevant conduct.’” United States 

v. Cornog, 945 F.2d 1504, 1509 (11th Cir. 1991) (quoting U.S.S.G. § 1B1.3). We 

have warned that when the government charges a conspiracy offense that takes 

place over a period of time, “some complications arise” in identifying the date 

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when the defendant began the relevant conduct. Id. This is because when an 

indictment charges an ongoing conspiracy and the jury returns a general verdict,

the jury may have found that the defendant and his conspirators “reached an 

agreement any time within the period charged and that the agreement continued 

through the period or, for example, only for one day.” Id. Because it is 

“impossible for us to tell when the relevant conduct occurred” from the general 

verdict, we generally count back “only from the last day alleged as part of the 

conspiracy” unless the district court finds at sentencing that the defendant began to 

engage in the relevant conduct on some earlier date. Id. at 1509–10.

In this case, the indictment charged Bass with participating in a conspiracy 

that ran from between on or about April 1, 2017 until August 28, 2018. Because 

the district court made no finding at sentencing about when he joined the 

conspiracy, Bass says, under Cornog we must conclude that he joined the 

conspiracy on August 28, 2018, the last date identified in the indictment. We 

disagree. Bass fails to address a key difference between this case and Cornog. In 

Cornog, the question was the start date of a defendant’s conduct when the jury 

returned a general guilty verdict. Here, in contrast, Bass pled guilty to the charged 

conspiracy. And as part of the plea agreement, Bass agreed that he participated in 

relevant conduct that was part of the conspiracy before August 28, 2018. Indeed, 

in the plea agreement, he admitted that he began to work with other coUSCA11 Case: 19-15148 Date Filed: 12/28/2020 Page: 14 of 16
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conspirators to distribute methamphetamine as early as April 2017. And Bass did 

not object to the paragraphs in the PSI that described his relevant conduct as part of 

the conspiracy in April 2017. Because he admitted that he had joined the 

conspiracy by April 30, 2017, we look to whether he was sentenced for attempted 

manufacture of methamphetamine within ten years of that date. See U.S.S.G. 

§§ 4A1.1(c); 4A1.2(e)(2). The record reflects that he was sentenced for the 

attempted manufacture crime on September 4, 2007, which is within the ten-year 

period. We therefore hold that this offense scored at least one criminal history 

point and was properly counted as a predicate offense for purposes of the careeroffender enhancement.

6

 See U.S.S.G. § 4B1.1(c) (providing that a felony 

conviction that earns a criminal history point under § 4A1.1(c) may qualify as a 

predicate for purposes of the career-offender enhancement). 

IV.

For the reasons set forth above, we conclude that Bass had two prior felony 

convictions for purposes of the career-offender enhancement: his 2001 conviction

6 Bass also argues that under Cornog the district court was required to make an express 

finding at his sentencing hearing about when his participation in the conspiracy began. But in 

light of Bass’s admissions in the plea agreement and failure to object to the statements in the PSI

about when he joined the conspiracy, we cannot agree that the district court was required to 

make a factual finding about when Bass’s participation in the conspiracy began. See United 

States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (recognizing that there was no 

requirement that district court engage in judicial factfinding when the defendant admitted to the 

facts that enhanced his sentence in the plea agreement and presentence report).

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for distribution of a controlled substance and his 2007 conviction for attempted 

manufacture of methamphetamine. We thus affirm his sentence. 

AFFIRMED.

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