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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11207
Non-Argument Calendar
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D.C. Docket No. 8:17-cr-00354-CEH-CPT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL MOORE,
a.k.a. Michael Paul Moore,
a.k.a. Michael P. Moore,
a.k.a. Michael Nelson,
a.k.a. Michael Paul Nelson,
a.k.a. Michael P. Nelson,
a.k.a. Chris Smith,
a.k.a. Corey Sims,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 13, 2020)
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Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Michael Moore appeals his below-guidelines 188-month sentence for being
a felon in possession of a firearm. Moore asserts the district court erred in denying
him an acceptance-of-responsibility reduction and that the district court
erroneously believed it lacked the authority to give a reduction. Additionally,
Moore contends his prior convictions under Fla. Stat. § 893.13 do not qualify as
serious drug offenses under the Armed Career Criminal Act (ACCA). After
review, we affirm Moore’s sentence.
I. DISCUSSION
A. Acceptance of Responsibility
A two-level reduction applies if the defendant “clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). The guidelines
commentary provides “[t]his adjustment is not intended to apply to a defendant
who puts the government to its burden of proof at trial by denying the essential
factual elements of guilt, is convicted, and only then admits guilt and expresses
remorse.” U.S.S.G. § 3E1.1(a), comment. (n.2). It further states that, if a
defendant proceeds to trial, acceptance-of-responsibility reductions should only
occur in “rare situations,” such as “where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt.”
Id.
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The district court is in a unique position to evaluate whether a defendant has
accepted responsibility for his acts, and we will not set aside such a determination
“unless the facts in the record clearly establish that the defendant has accepted
responsibility.” United States v. Moriarty,
429 F.3d 1012, 1022-23 (11th Cir.
2005). The defendant bears the burden of proving he accepted responsibility.
Id.
at 1023.
The district court did not clearly err in finding Moore did not meet his
burden of showing he clearly accepted responsibility for his offense and his case
was not one of the “rare circumstances” where a defendant who went to trial
warranted a reduction. See United States v. Tejas,
868 F.3d 1242, 1247 (11th Cir.
2017) (reviewing the district court’s denial of an acceptance-of-responsibility
reduction under U.S.S.G. § 3E1.1 for clear error). Moore conceded he was a
convicted felon and that he possessed a firearm, but he did not stipulate to the
interstate commerce element. See United States v. Green,
873 F.3d 846, 852 (11th
Cir. 2017) (stating to prove a defendant was a felon in possession of a firearm, the
Government is required to prove (1) the defendant was a convicted felon when he
had possession of the firearm; (2) the defendant knowingly possessed the firearm;
and (3) the firearm traveled in interstate commerce). While Moore never explicitly
denied this element, his actions at trial show he was not ready to concede the issue.
Moore objected to the admission of business records being offered to show the
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firearm traveled in interstate commerce. By objecting to this evidence, Moore was
challenging the ability of the Government to satisfy its burden of proof as to this
element. See U.S.S.G. § 3E1.1, comment. (n.2). Therefore, Moore did not elect to
go to trial solely to raise the defense of necessity.
While Moore distinguishes between objections made to dispositive versus
non-dispositive evidence, citing United States v. Gonzalez,
70 F.3d 1236, 1239
(11th Cir. 1995), this is a distinction without difference. Moore’s challenge to the
admissibility of the Government’s exhibits was an attempt to avoid a determination
that the firearm had moved in interstate commerce, which the Government had to
prove because Moore had not stipulated to it. And while Moore claims this
evidence was not essential to the Government’s case because it could have proven
the element by other means, that is immaterial to the fact that Moore put the
Government to its burden at trial and then contested its evidence. Thus, the district
court did not clearly err in finding that, by challenging evidence offered to show
his guilt, Moore had not clearly demonstrated acceptance of responsibility for the
crime charged.
Moore’s argument the district court erroneously believed that challenging an
element of an offense at trial barred an acceptance-of-responsibility reduction is
also unpersuausive. See United States v. Hansen,
262 F.3d 1217, 1255 (11th Cir.
2001) (stating we review de novo a defendant’s claim the district court mistakenly
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believed it lacked the authority to grant a reduction under the guidelines). Before
denying the acceptance-of-responsibility reduction, the court recognized “that a
Defendant may still have the acceptance of responsibility reduction even if he goes
to trial . . . under certain reasons.” The court further discussed the enumerated
reasons listed in the Guidelines commentary, even listing potential situations not
listed in the commentary itself. Further, the court explained its decision, noting
that “[Moore] did not admit the interstate nexus,” and “because he did put the
Government to its burden of proof at trial . . . he is not entitled to the reduction.”
Thus, the record does not support that the district court made an error of law as to
the availability of an acceptance-of-responsibility reduction. Rather, the district
court determined that Moore was not entitled to a reduction under the facts here.
Accordingly, the district court was within its discretion to determine that
Moore’s objection showed Moore had not accepted responsibility for his acts. As
the record reflects the district court understood its discretion in granting or denying
a reduction, no misunderstanding of authority occurred. See
Hansen, 262 F.3d at
1257. We affirm the district court’s denial of the acceptance-of-responsibility
reduction.
B. Fla. Stat. § 893.13
We review whether a conviction qualifies as a serious drug offense under the
ACCA de novo. United States v. White,
837 F.3d 1225, 1228 (11th Cir. 2016).
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Convictions under Fla. Stat. § 893.13 qualify as a “serious drug offense” under the
ACCA. United States v. Smith,
775 F.3d 1262, 1268 (11th Cir. 2014). In Smith,
we also analyzed and rejected the necessity of a mens rea element in the
underlying crime to qualify as a serious drug offense under the ACCA.
Id.
Moore’s arguments his prior convictions under § 893.13 were not serious
drug offenses are foreclosed by Smith. While Moore claims that Smith was
wrongly decided, this Court is bound to follow it until it is overruled by the
Supreme Court or this Court en banc. See United States v. Vega-Castillo,
540 F.3d
1235, 1236 (11th Cir. 2008). Accordingly, we are bound by our holding in Smith
and affirm the district court’s determination that Moore’s prior convictions under
Fla. Stat. § 893.13 were serious drug offenses under the ACCA.
II. CONCLUSION
Accordingly, we affirm Moore’s sentence.
AFFIRMED.
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