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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10652
Non-Argument Calendar
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D.C. Docket No. 8:17-cr-00161-SCB-MAP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAVIS WILSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 17, 2018)
Before TJOFLAT, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM:
Javis Wilson appeals the enhancement of his sentence under the Armed
Career Criminal Act (“ACCA”) and the Sentencing Guidelines. Because his
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arguments about his sentence either fail or are barred by his valid appeal waiver,
we affirm.
After Wilson sold firearms to undercover agents of the Bureau of Alcohol,
Tobacco, Firearms and Explosives, he was indicted on three counts of possession
of a firearm by a felon,
18 U.S.C. § 922(g)(1). He agreed to plead guilty to one
count. Wilson’s written plea agreement contained a waiver of his right to appeal.
However, the waiver contained four exceptions, including exceptions for appeals
on the grounds that the sentence exceeds the Guidelines range as determined by the
court, or that the sentence exceeds the statutory maximum.
At his change-of-plea hearing, the magistrate judge questioned Wilson about
the plea agreement and specifically questioned him about the appeal waiver. When
the magistrate judge asked whether Wilson understood he was limiting his right to
appeal his sentence, Wilson’s reply was later transcribed as “Inaudible.” The
magistrate judge found that Wilson’s guilty plea was knowing and voluntary, and
the district court accepted his guilty plea.
Under the Guidelines, Wilson’s total offense level was 33 and his criminal
history category was VI, resulting in an advisory sentencing range of 235 to 293
months. Under ACCA, however, § 922(g) offenders with “three previous
convictions . . . for . . . a serious drug offense” are subject to a statutory minimum
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sentence of 15 years.
18 U.S.C. § 924(e)(1). 1 At his sentencing hearing, Wilson
objected to, among other things, the finding of the district court that he had three
ACCA-predicate “serious drug offense” convictions. In particular, he asserted that
his recollection was that one of the three convictions—a 2001 Florida conviction
for delivery of cocaine—had been reduced to a possession charge. He conceded,
however, that he had no evidence to contradict the state court documents the
government was relying upon. The district court overruled the objection, finding
that Wilson had been convicted of delivery of cocaine.
Wilson also objected to the 4-level enhancement applied for possessing at
least eight firearms, U.S.S.G. § 2K2.1(b)(1)(B), arguing that although he may have
brokered several gun sales, he had only personally supplied three firearms. The
district court overruled that objection and others and imposed a sentence of 220
months. Wilson now appeals, raising two issues about his sentence.
First, Wilson argues that his 2001 Florida conviction for delivery of cocaine
should not count as an ACCA-predicate “serious drug offense” because “the
judgment reflects no statute of conviction.” Wilson did not raise this particular
issue in the district court, so we review only for plain error.2 United States v.
1
Without an ACCA designation, Wilson would have faced a statutory maximum sentence of 10
years.
18 U.S.C. § 924(a)(2).
2
This argument is not barred by Wilson’s appeal waiver, since he is arguing that his sentence
exceeds the statutory maximum to which he maintains he is entitled.
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Jones, 743 F.3d 826, 828 (11th Cir. 2014). We find that Wilson has not established
any error, much less plain error.
Wilson observes that the document of criminal judgment upon which the
district court relied says he violated “Florida Statutes §893.13 1A (2000),” which
he argues does not exist. In view of the entire record, we do not agree. The district
court also had before it, and was entitled to consider, the charging document for
the offense. See Shepard v. United States,
544 U.S. 13, 16 (2005). That document
lists the statute as “F.S. 893.13(1)(a)” and the charges under that statute, including
“delivery of cocaine,” agree with what the judgment document says. Thus, there is
no real question about the statute of conviction: chapter 893.13(1)(a) of the Florida
Statutes. Under that statute, cocaine delivery offenses are second-degree felonies
subject to up to 15 years’ imprisonment. See
Fla. Stat. §§ 893.03(2)(a) &
775.082(3)(d). We have previously held that distribution convictions under this
Florida statute that are punishable by at least 10 years’ imprisonment are ACCA-
predicate “serious drug offenses.” United States v. Smith,
775 F.3d 1262, 1267
(11th Cir. 2014) (citing
18 U.S.C. § 924(e)(2)(A)(ii)). The district court thus did
not err in finding this conviction to be an ACCA predicate.
Second, Wilson argues that the district court’s finding to support an
enhancement for at least eight firearms under U.S.S.G. § 2K2.1(b)(1)(B) was
clearly erroneous. This argument, unlike his first, is barred by his appeal waiver.
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We review the validity of an appeal waiver de novo. United States v. Bushert,
997
F.2d 1343, 1352 (11th Cir. 1993). At his change-of-plea hearing, Wilson said (or
mumbled) that he understood the terms of the agreement, including its limited
exceptions and its sentencing consequences. Wilson argues that his responses
transcribed as “(Inaudible)” do not indicate understanding. But our precedent on
enforcing appeal waivers requires only that either “(1) the district court specifically
questioned the defendant concerning the sentence appeal waiver during the Rule 11
colloquy, or (2) it is manifestly clear from the record that the defendant otherwise
understood the full significance of the waiver.”
Id. at 1351. At the very least, the
former was satisfied here by the magistrate judge’s thorough questioning and
apparent satisfaction with Wilson’s responses. The appeal waiver is valid as to this
issue, and it prevents us from considering it further.
AFFIRMED.
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