United States v. Juan Demetrius Allen , 714 F. App'x 988 ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13555
Non-Argument Calendar
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D.C. Docket No. 3:17-cr-00014-RV-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN DEMETRIUS ALLEN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 9, 2018)
Before TJOFLAT, JILL PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Juan Allen appeals his total 117-month sentence after pleading guilty to two
counts of possession of a firearm and ammunition by a convicted felon, 18
U.S.C. §§ 922(g)(1) and 924(a)(2), possession of a controlled substance with intent
to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and (b)(1)(D), and possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). He
argues his sentence was procedurally unreasonable because the District Court
assessed a two-level enhancement for possessing between three and seven firearms
when the evidence used to support this enhancement was inconclusive. He also
argues that his base offense level was incorrect because a conviction under Fla.
Stat. § 893.13, is not a “controlled substance offense” according to U.S.S.G. §
4B1.2(b), an argument he concedes is foreclosed by Circuit precedent.
I.
We use a two-step process to review a sentence’s reasonableness. Gall v.
United States, 552 U.S. 38, 51 (2007). First, we must confirm that the district
court committed no significant procedural error. Id. A sentence is procedurally
erroneous if a district court commits an error “such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence. . . .” Id.
After reviewing for procedural reasonableness, we consider the substantive
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reasonableness of a sentence under the deferential abuse-of-discretion standard.
Id. We review a district court’s factual findings for clear error. United States v.
Tejas, 868 F.3d 1242, 1244 (11th Cir. 2017). “For factual findings to be clearly
erroneous, we must be left with a definite and firm conviction that the court made a
mistake.” Id. A defendant receives a two-level increase if the offense involved
between three and seven firearms. § 2K2.1(b)(1)(A). Where a defendant
challenges the factual basis of his sentence as set forth in the presentence
investigation report, the Government has the burden of establishing the disputed
fact by a preponderance of the evidence. United States v. Bradley, 644 F.3d 1213,
1283 (11th Cir. 2011).
Here, the District Court did not clearly err in finding by a preponderance of
the evidence that Allen possessed between three and seven firearms; thus, the
Court thus did not err in applying the § 2K2.1(b)(1)(A) enhancement. The Court
concluded that Allen at one time possessed at least three different guns (in addition
to the two guns seized after Allen’s arrest) featured in images on Allen’s phone. A
reasonable factfinder had considerable evidence upon which to rest this inference.
An ATF agent testified that all of the images were taken using the same phone
model as Allen’s. The background in one image showed a “4Runner” car mat, and
the agent testified that Allen rented a Toyota 4Runner on the same day the image
was taken. The agent further testified that the fabric covering the seats in several
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other photos matched the distinct design pattern of the seat fabric in the car Allen
possessed at the time he was arrested. And at least two of the guns were
photographed alongside one of the guns seized from Allen after his arrest. While
none of this evidence established conclusively that Allen took the photos, they
support the reasonable inference that he did, and that he possessed the firearms in
the photos. Hence, the District Court did not clearly err.
On this record, the District Court’s conclusion that Allen possessed between
three and seven firearms does not elicit “a definite and firm conviction” that the
Court rested its factual findings on insufficient evidence. Therefore, the Court did
not clearly err.
II.
The definition of a controlled substance offense under U.S.S.G. § 2K2.1 is
found in U.S.S.G. § 4B1.2, which states
The term “controlled substance offense” means 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. § 2K2.1, comment. (n.1), U.S.S.G. § 4B1.2(b). In relevant part, Fla. Stat.
§ 893.13(1)(a) states “a person may not sell, manufacture, or deliver, or possess
with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat.
§893.13(1)(a). Knowledge of the illicit nature of the substance is not an element of
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the offense. Fla. Stat. § 893.101. Allen correctly concedes that our precedent
clearly holds that a conviction under Fla. Stat. § 893.13 is a controlled substance
offense. United States v. Pridgeon, 853 F.3d 1192, 1198 (11th Cir. 2017), cert.
denied, 138 S. Ct. 215 (2017); United States v. Smith, 775 F3d 1262, 1268 (11th
Cir. 2014). In Pridgeon and Smith, we held, for purposes of the career offender
increase, U.S.S.G. § 4B1.1, that a conviction under Fla. Stat. § 893.13 qualifies as
a “controlled substance offense.” Id. Allen preserved this objection pending
resolution of the certiorari petition to the Supreme Court in Pridgeon, which has
since been denied. Accordingly, our precedent forecloses this objection.
AFFIRMED.
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