United States v. Kenneth Bullard ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13365
Non-Argument Calendar
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D.C. Docket No. 9:14-cr-80020-JIC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH BULLARD,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 22, 2015)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Kenneth Anthony Bullard appeals his 180-month sentence, imposed after he
pled guilty to possession of a firearm by a convicted felon. Mr. Bullard argues that
the district court erred in (1) finding that his prior conviction for possession of
cocaine with intent to sell under Fla. Stat. § 893.13(1)(a) qualified as a “serious
drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e); (2)
increasing his offense level under § 4B1.4(b)(3)(A) for possessing a firearm in
connection with a controlled substance offense; and (3) sentencing him above the
ten-year statutory maximum for his offense based on prior convictions that were
not alleged in the indictment. Having reviewed the record and the parties’ briefs,
and finding no reversible error, we affirm.
I
The district court sentenced Mr. Bullard as an armed career criminal under
the ACCA based on three qualifying predicate convictions: (1) a 1989 Florida
conviction for possession of cocaine with intent to sell, in violation of Fla. Stat. §
893.13(1)(a); (2) a 1991 Florida conviction for aggravated battery and battery on a
police officer, in violation of Fla. Stat. §§ 784.045 and 784.07; and (3) a 1999
federal conviction for possession of cocaine with intent to distribute. On appeal,
Mr. Bullard contends that his Florida conviction for possession of cocaine with
intent to sell under Fla. Stat. § 893.13(1)(a), is not a “serious drug offense” within
the meaning of the ACCA.
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We review de novo whether a prior conviction qualifies as a “serious drug
offense” under the ACCA to enhance a defendant’s sentence. See United States v.
Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009). Under the ACCA, any person
who violates 18 U.S.C. § 922(g) and has at least three prior convictions from any
court “for a violent felony or a serious drug offense, or both, committed on
occasions different from one another” receives a mandatory minimum sentence of
15 years. 18 U.S.C. § 924(e)(1). A “serious drug offense” is defined, in pertinent
part, as follows:
(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance . . . , for which a
maximum term of imprisonment of then years or more is
prescribed by law.
18 U.S.C. § 922(e)(2)(A)(ii).
In United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014), we held that
a conviction under Fla. Stat. § 893.13(1) is a “serious drug offense” under the
ACCA. Accordingly, we hold, for the reasons substantially stated in our opinion
in Smith, that the district court did not err in concluding that Mr. Bullard’s prior
conviction under § 893.13(1)(a) for possession of cocaine with intent to sell
qualified as a “serious drug offense” under the ACCA.
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II
Mr. Bullard also argues that the trial court erred in enhancing his sentence
under § 4B1.4(b)(3)(A) because there was insufficient evidence to establish that he
possessed a firearm “in connection with . . . a controlled substance offense.”
U.S.S.G. § 4B1.4(b)(3)(A).
The pertinent facts of the offense are as follows. Riviera Beach police
officers obtained a search warrant to search Mr. Bullard’s residence after a
confidential source made two purchases of drugs from Mr. Bullard at the
residence. Mr. Bullard resided in the sole upper-floor apartment of a two-story
building. A search of the apartment yielded five grams of cocaine in two plastic
baggies in the master bedroom, as well as a digital scale in the kitchen. During
execution of the search warrant, officers observed a firearm in plain view on the
front passenger seat of a car parked in a parking stall in front of the apartment
complex. Mr. Bullard acknowledged that the car belonged to his mother and
admitted that the firearm belonged to him. Based on these facts, the district court
found “by a preponderance of the evidence that [Mr. Bullard] did possess a firearm
and ammunition in connection with a controlled substance offense.”
“We review a sentencing court’s findings of fact for clear error and review
its application of the law to the facts de novo.” United States v. Young, 115 F.3d
834, 836 (11th Cir. 1997). Under the Sentencing Guidelines, a defendant who
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qualifies as an armed career criminal receives an offense level of “34, if the
defendant used or possessed the firearm or ammunition in connection with . . . a
controlled substance offense.” U.S.S.G. § 4B1.4(b)(3)(A). The Guidelines define
a “controlled substance offense” as “an offense . . . 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).
Even if Mr. Bullard could demonstrate that the district court erred in finding
that he “possess[ed] a firearm and ammunition in connection with a controlled
substance offense,” any such error would be harmless. Mr. Bullard qualified as an
armed career criminal under the ACCA, and as such, he was subject to a
mandatory minimum sentence of 180 months. Even if Mr. Bullard had not
possessed the firearm at issue in connection with a controlled substance offense,
thereby reducing his advisory guideline range to 135-168 months, the district court
nevertheless would have been required to impose a sentence of at least 180
months—the exact sentence that Mr. Bullard received. Accordingly, no reversible
error has been shown.
III
Finally, Mr. Bullard contends that his sentence is unconstitutional because
the trial court relied on prior convictions not alleged in his indictment to increase
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his sentence above the ten-year statutory maximum. We review such
constitutional sentencing issues de novo. See United States v. Steed, 548 F.3d 961,
968 (11th Cir. 2008). Because prior precedent forecloses Mr. Bullard’s argument,
we conclude that the district court’s imposition of the ACCA enhancement did not
violate Mr. Bullard’s constitutional rights. See, e.g., Smith, 775 F.3d at 1266 (“The
Constitution does not require that the government allege in its indictment and
prove beyond a reasonable doubt that [a defendant] had prior convictions for a
district court to use those convictions for purposes of enhancing a sentence.”)
(internal quotation marks omitted).
IV
Based on the foregoing, we affirm Mr. Bullard’s sentence.
AFFIRMED.
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