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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12557
Non-Argument Calendar
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D.C. Docket Nos. 6:15-cv-01517-ACC-DCI,
6:12-cr-00210-ACC-DAB-1
CURTIS LEE DALLAS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 16, 2018)
Before MARCUS, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Curtis Dallas appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate sentence, in which he argued that his 2002 nolo contendere plea
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to possession of cocaine with intent to deliver, which was followed by a two-year
sentence of probation, does not qualify as a conviction of a serious drug offense
under the Armed Career Criminal Act (“ACCA”). On appeal, he argues that his
plea does not constitute an ACCA predicate offense because adjudication was
withheld and the charge was reduced to a simple possession charge. After careful
review, we affirm.
In a proceeding on a motion to vacate, set aside, or correct sentence, the
district court’s factual findings are reviewed for clear error while legal issues are
reviewed de novo. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004).
A prisoner in federal custody may file a motion to vacate, set aside, or correct
sentence pursuant to § 2255, “claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). If a defendant fails to raise a claim on direct appeal,
“he is barred from asserting it on motion for collateral relief unless he can show
cause excusing his failure to raise the issue previously and actual prejudice
resulting from the alleged error.” United States v. Nyhuis,
211 F.3d 1340, 1344
(11th Cir. 2000).
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
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mandatory minimum imprisonment sentence of 15 years. 18 U.S.C. § 924(e)(1). A
“serious drug offense” is
(i) an offense under the Controlled Substances Act (21 U.S.C. 801
et seq.), the Controlled Substances Import and Export Act (21
U.S.C. 951 et seq.), or chapter 705 of title 46, for which a
maximum term of imprisonment of ten years or more is
prescribed by law; or
(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 ten years or more is prescribed by law.
Id. § 924(e)(2)(A)(i)-(ii).
What constitutes a conviction for a serious drug offense under the ACCA is
“determined in accordance with the law of the jurisdiction in which the
proceedings were held.” See 18 U.S.C. § 921(a)(20); United States v. Santiago,
601 F.3d 1241, 1243 (11th Cir. 2010). In Santiago, we addressed whether a guilty
plea followed by a sentence of probation and a withholding of adjudication for
possession of cocaine was a conviction for the purposes of sentence enhancement
under § 924(e) of the ACCA.
Id. at 1242, 1244. We noted that the definition of
“conviction” under Florida law “is fluid and context specific.”
Id. at 1244. Thus,
because § 924(e) is an enhancement statute, we examined Florida law concerning
sentencing enhancements for habitual felony offenders.
Id. at 1244–45. We noted
that Florida’s habitual felony offender statute, which states that, “[f]or the purposes
of this section, the placing of a person on probation or community control without
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an adjudication of guilt shall be treated as a prior conviction.” Fla. Stat. §
775.084(2) (emphasis added). We concluded that “a guilty plea followed by a
sentence of probation and a withholding of adjudication constitutes a conviction
under Florida law for the purpose of enhancing a defendant’s sentence pursuant to
18 U.S.C. § 924(e).”
Id. at 1245.
In United States v. Clarke,
822 F.3d 1213 (11th Cir. 2016), we recently held
that a guilty plea with adjudication withheld did not qualify as a “conviction” for
the purposes of § 922(g).
Id. at 1215. We reasoned that since § 922(g)(1) is the
federal felon-in-possession statute,
id. at 1214, we would look to the Florida felon-
in-possession statute, which prohibits a person from “own[ing] or [ ] hav[ing] in
his or her care, custody, possession, or control any firearm . . . if that person has
been . . . [c]onvicted of a felony in the courts of [Florida].” Fla. Stat. § 790.23(1).
We then certified to the Florida Supreme Court whether a guilty plea with
adjudication withheld constituted a conviction under the Florida statute, and it
answered in the negative. Clarke v. United States,
184 So. 3d 1107, 1116 (Fla.
2016). Notably, the plea in Clarke did not involve any probationary period.
Clarke, 822 F.3d at 1214.
Clarke does not speak directly to this case. Not only did Clarke not involve
a probationary period, but the relevant statute there, Florida’s felon-in-possession-
of-a-firearm statute, was silent on whether a withholding of adjudication qualified
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as a “conviction” for the purposes the felon-in-possession statute.
Clarke, 822 F.3d
at 214 (addressing what constitutes a conviction under § 922(g), not § 924(e)); see
also
Santiago, 601 F.3d at 1243 (noting that what constitutes a conviction under
Florida law is context-specific). Here, as in Santiago, the question is whether a plea
constitutes a conviction for purposes of § 924(e), which is a sentence enhancement
provision. See
Santiago, 601 F.3d at 1244 (emphasizing that “[t]his case . . . does
not present the question of whether Santiago was ‘convicted’ of the 2001 offense
for the purpose of supporting a charge under 18 U.S.C. § 922(g)(1) -- i.e., for the
purpose of determining whether Santiago is a convicted felon.”). We therefore
must look to Florida law concerning sentencing enhancements for habitual felony
offenders.
Santiago, 601 F.3d at 1244. Florida’s habitual-felony-offender statute
provides that “[f]or the purposes of this section, the placing of a person on
probation or community control without an adjudication of guilt shall be treated as
a prior conviction.” Fla. Stat. § 775.084(2) (emphasis added). Thus, under
Santiago, and the plain language of the Florida statute, a plea with adjudication
withheld, followed by a sentence of probation, qualifies as a conviction under §
924(e).
Santiago, 601 F.3d at 1242–47. Indeed, Clarke specifically cited Fla. Stat.
§ 775.084 as an example of an “express[] inclu[sion of] withheld adjudications
within the definition of conviction . . . for purposes of” enhancing the sentence of
habitual felony
offenders. 184 So. 3d at 1113-14.
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Further, the language of the Florida habitual-felony-offender statute, relied
on in Santiago, indicates that any plea followed by a sentence to probation
constitutes a conviction.
Santiago, 601 F.3d at 1245 (citing Fla. Stat. §
775.084(2)). While Santiago involved a plea of guilt, and this case involves a nolo
contendere plea, the Florida statute does not distinguish between the two for
purposes of habitual felonies. Rather, Florida courts have consistently treated
guilty pleas and nolo contendere pleas the same in the habitual-felony context.
See, e.g., Ashley v. State,
614 So. 2d 486, 489-90 (Fla. 1993) (laying out
requirements “in order for a defendant to be habitualized following a guilty or nolo
plea” (emphasis added)).
In short, because Dallas’s 2002 nolo contendere plea was followed by a two-
year probation sentence, the district court did not err in concluding that his plea
qualified as a conviction of a serious drug offense under the ACCA. As for
Dallas’s argument that his conviction was not a serious drug offense under the
ACCA because it was for a reduced charge of simple possession with a maximum
penalty of five years, we do not consider it. As the record reflects, the conviction
was listed as an ACCA predicate offense in his pre-sentence investigation report,
yet Dallas failed to raise this argument on his direct appeal even though he had the
opportunity to do so.
Nyhuis, 211 F.3d at 1344. And he has made no showing of
cause or prejudice to excuse his default.
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AFFIRMED.
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