United States v. Bradley Eugene Ackerman , 709 F. App'x 925 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11589
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00444-VMC-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRADLEY EUGENE ACKERMAN,
a.k.a. Papa Smurf,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(September 14, 2017)
Before HULL, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:
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Bradley Eugene Ackerman appeals the 188-month prison sentence he
received after pleading guilty to one count of possessing a firearm and ammunition
as a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), and one count of
possessing five grams or more of methamphetamine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii). After careful review, we affirm.
I.
After Ackerman pled guilty to these firearm and drug charges, the probation
office prepared a presentence investigation report (“PSR”). The PSR said
Ackerman qualified for a longer prison sentence under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), because he had previously been convicted in
Florida of: (1) aggravated assault (1985); (2) aggravated battery (1986); (3)
trafficking in cannabis (1986); and (4) possession with intent to distribute more
than fifty grams of methamphetamine (2001). Based on an adjusted offense level
of 31 and a criminal history category of VI, the PSR set Ackerman’s United States
Sentencing Guidelines (“USSG”) range of imprisonment to be 188 to 235 months.
Ackerman objected to the PSR, arguing his aggravated assault, aggravated
battery, and trafficking in cannabis convictions did not qualify as ACCA
predicates. At sentencing, the district court overruled Ackerman’s objections,
adopted the undisputed findings in the PSR, and sentenced Ackerman to a 188-
month term of imprisonment for each of his counts, to run concurrently.
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II.
On appeal, Ackerman argues three of the Florida convictions used to support
his ACCA sentence do not qualify as valid predicate offenses. Specifically, he
says under the ACCA, his conviction for trafficking in cannabis does not count as a
“serious drug offense,” and that his convictions for aggravated assault and
aggravated battery do not qualify as “violent felonies.”
We review de novo whether a particular offense constitutes a violent felony
or a serious drug offense within the meaning of the ACCA. United States v.
White, 837 F.3d 1225, 1228 (11th Cir. 2016) (per curiam); United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012). Under the ACCA, a defendant convicted of
possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) is subject to a
mandatory minimum 180-month prison sentence if he has three prior convictions
for either a “serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e)(1).
The ACCA defines a “serious drug offense” to include any 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.” 18 U.S.C. § 924(e)(2)(A)(ii).
Further, the ACCA defines a “violent felony” as any crime punishable by a
term of imprisonment exceeding one year that
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
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(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
Id. § 924(e)(2)(B)(i)–(ii). The first prong of this definition, § 924(e)(2)(B)(i), is
called the “elements clause.” Owens, 672 F.3d at 968. The first part of
§ 924(e)(2)(B)(ii)—“is burglary, arson, or extortion, involves use of explosives”—
is known as the “enumerated crimes” clause, and the second part of it—“or
otherwise involves conduct that presents a serious potential risk of physical injury
to another”—is called the “residual clause.” Owens, 672 F.3d at 968. The
Supreme Court invalidated the residual clause as unconstitutionally vague in
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 2557 (2015). Neither
does the enumerated crimes clause apply here because Ackerman’s convictions for
aggravated assault and aggravated battery are not among the crimes enumerated in
§ 924(e)(2)(B)(ii). Thus, Ackerman’s aggravated assault and aggravated battery
convictions can only qualify as violent felonies for ACCA purposes under the
elements clause.
To determine whether Ackerman’s convictions are either serious drug
offenses or violent felonies under the ACCA, we must apply what is known as the
“categorical approach.” Under this approach, we do not look at the facts that
resulted in the earlier conviction. Descamps v. United States, 570 U.S. ___, 133 S.
Ct. 2276, 2283 (2013). Instead, Supreme Court precedent requires us to look only
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to the elements of the statute under which the person was convicted. See Mathis v.
United States, 579 U.S. ___, 136 S. Ct. 2243, 2251 (2016). If the “least of the acts
criminalized” by the statute does not fall within the definition of a serious drug
offense or violent felony provided by the ACCA, then a conviction under that
statute cannot serve as an ACCA predicate offense. Moncrieffe v. Holder, 569
U.S. ___, 133 S. Ct. 1678, 1684 (2013) (quotation omitted and alteration adopted).
Thus, when applying the categorical approach, we must identify the “least culpable
conduct” prohibited by the statute of conviction and presume that the defendant’s
conviction rested on “nothing more” than this conduct. Donawa v. U.S. Att’y
Gen., 735 F.3d 1275, 1283 (11th Cir. 2013); Moncrieffe, 133 S. Ct. at 1684(quotation omitted and alteration adopted). As part of this step, we must analyze
“the version of state law that the defendant was actually convicted of violating.”
McNeill v. United States, 563 U.S. 816, 821, 131 S. Ct. 2218, 2222 (2011).
On appeal, Ackerman challenges only three of the four convictions the
district court found to be qualifying ACCA predicates. 1 Thus, we may affirm the
district court so long as we determine that two of the three convictions challenged
by Ackerman can support his ACCA sentence. Because we believe our precedent
dictates that Ackerman’s trafficking in cannabis conviction and his aggravated
1
Ackerman did not dispute the PSR’s determination that his conviction for possessing
fifty grams or more of methamphetamine with intent to distribute was a valid ACCA predicate,
and the district court adopted the PSR’s undisputed findings at sentencing. As a result, that
conviction serves as a valid ACCA predicate here, and Ackerman does not say otherwise on
appeal.
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assault convictions both serve as valid ACCA predicates under the categorical
approach, we affirm his ACCA-enhanced sentence. We explain each finding in
turn.
A. TRAFFICKING IN CANNABIS
Ackerman was convicted of trafficking in cannabis in 1986. At that time,
the statute under which he was convicted, Fla. Stat. § 893.135(1)(a) (1985 & Supp.
1986), said “[a]ny person who knowingly sells, manufactures, delivers, or brings
into this state, or who is knowingly in actual or constructive possession of, in
excess of 100 pounds of cannabis is guilty of a felony of the first degree.” That
crime carried a maximum sentence of 30-years imprisonment. Id. § 775.082(3)(b)
(1985 & Supp. 1986).
Ackerman says his conviction under § 893.135(1)(a) did not qualify as a
serious drug offense under the ACCA—that is, it did not “involv[e] manufacturing,
distributing, or possessing with intent to manufacture or distribute, a controlled
substance,” 18 U.S.C. § 924(e)(2)(A)(ii)—because it “contains no mens rea
element to manufacture or distribute.” However, this argument is foreclosed by
our decision in United States v. James, 430 F.3d 1150 (11th Cir. 2005), overruled
on other grounds by Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551(2015). In James, this Court considered whether Florida’s cocaine trafficking
statute, Fla. Stat. § 893.135(1)(b), could qualify as a serious drug offense even
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though that statute, like Florida’s cannabis trafficking statute here, did not require
the state to prove an intent to manufacture or distribute the controlled substance on
the part of the defendant. See id. at 1154. The James panel held the ACCA’s use
of the word “involving” meant that “state offenses that do not have as an element
the manufacture, distribution, or possession of drugs with intent to manufacture or
distribute” could still qualify as serious drug offenses under the ACCA. Id. at
1155. Further, it concluded courts could infer that a defendant who was convicted
under the cocaine trafficking statute had an intent to distribute cocaine from (1) the
quantity of cocaine a defendant must possess in order to violate the trafficking
statute; and (2) the trafficking statute’s placement as the most serious crime in a
three-tiered scheme in which trafficking carried more severe penalties than both
mere possession and possession with intent to distribute. Id. at 1154–55.
This case presents a very similar situation. At the time Ackerman was
convicted of trafficking in cannabis, the statute prohibited actual or constructive
possession of 100 pounds of cannabis. Fla. Stat. § 893.135(1)(a) (1985 & Supp.
1986). Further, trafficking in cannabis carried more severe penalties than
possessing cannabis with intent to distribute. Compare id. (classifying trafficking
in cannabis as a first-degree felony), with id. § 893.13(1)(a)(2) (classifying
possessing cannabis with intent to distribute as a third -degree felony). Based on
these factors, under James Ackerman’s trafficking in cannabis conviction
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“involv[ed] . . . possessi[on] with intent to manufacture or distribute” a controlled
substance within the meaning of the ACCA. 18 U.S.C. § 924(e)(2)(A)(ii).
Ackerman also seems to argue his trafficking conviction cannot be a serious
drug offense under the ACCA because the trafficking statute did not require the
state to prove that the defendant knew the illicit nature of the substance he
possessed. However, this Court has held that the ACCA’s definition of a serious
drug offense does not require the state drug statute in question to have an “element
of mens rea with respect to the illicit nature of the controlled substance.” United
States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014). As a result, this argument
is also foreclosed by precedent.
Finally, Ackerman asserts that under the categorical approach, the “least
culpable conduct” criminalized by the Florida cannabis trafficking statute at the
time of Ackerman’s conviction was purchasing cannabis. Donawa, 735 F.3d at
1283. Thus, he says his conviction under that statute cannot serve as an ACCA
predicate because this Court’s decision in United States v. Shannon, 631 F.3d 1187(11th Cir. 2011), shows that purchasing cannabis does not fall within the ACCA’s
definition of a serious drug offense. See id. at 1189–90 (holding that purchasing
cocaine would not qualify as a “controlled substance offense” under USSG
§ 4B1.2(b)). However, the version of the trafficking statute that Ackerman was
convicted of violating, Fla. Stat. § 893.135(1)(a) (1985 & Supp. 1986), did not
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prohibit the mere purchase of cannabis. That statute was not amended to
criminalize purchasing cannabis until 1987—the year after Ackerman was
convicted. See 1987 Fla. Laws 1622. Thus, at the time Ackerman was convicted
under the cannabis trafficking statute, the least culpable conduct criminalized by
that statute was possessing 100 pounds of cannabis. See Fla. Stat. § 893.135(1)(a)
(1985 & Supp. 1986). And as we explained above, possessing 100 pounds of
cannabis “involv[es]” an intent to manufacture or distribute within the meaning of
the ACCA because of the high quantity of cannabis and the fact that a cannabis
trafficking conviction carried harsher penalties than a conviction for possessing
cannabis with intent to distribute. See James, 430 F.3d at 1154–55.
B. AGGRAVATED ASSAULT
Ackerman’s argument that his Florida aggravated assault conviction was not
a violent felony is foreclosed by our decision in Turner v. Warden Coleman FCI
(Medium), 709 F.3d 1328 (11th Cir. 2013), abrogated on other grounds by United
States v. Hill, 799 F.3d 1318 (11th Cir. 2015). There, we held that a 1981
aggravated assault conviction under Fla. Stat. § 784.021 2 falls within the elements
clause definition of a violent felony under the categorical approach because it has
“as an element the . . . threatened use of physical force against the person of
another.” Id. at 1338; see 18 U.S.C. § 924(e)(2)(B)(i). Ackerman says Turner’s
2
Fla. Stat. § 784.021 has not been amended since 1975.
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“continuing viability” is “in question in light of the Supreme Court’s decisions” in
Descamps, 133 S. Ct. 2276, and Johnson, 135 S. Ct. 2551, and wishes to preserve
that issue for further appellate review. Recently, this Court reaffirmed Turner’s
aggravated assault holding against the same challenge, stating that “even if Turner
is flawed, that does not give us, as a later panel, the authority to disregard it.”
United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017) (per curiam). Thus,
we must apply Turner “unless and until [its] holding is overruled by the Court
sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292,
1300 n.8 (11th Cir. 2001). As a result, Ackerman’s aggravated assault conviction
can serve as a valid ACCA predicate offense.
III.
Based on the foregoing analysis, Ackerman has at least three qualifying
predicate offenses that support the lengthened sentence he received under the
ACCA. As a result, we affirm his sentence.
AFFIRMED.
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