United States v. Dennis Pugh

USCA11 Case: 19-13732 Document: 43-1 Date Filed: 01/31/2023 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13732
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS PUGH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:18-cr-00258-CEM-LRH-1
____________________
USCA11 Case: 19-13732 Document: 43-1 Date Filed: 01/31/2023 Page: 2 of 3
2 Opinion of the Court 19-13732
Before WILSON, JILL PRYOR, and LUCK Circuit Judges.
PER CURIAM:
Dennis Pugh appeals his total sentence following his convic-
tion on multiple counts relating to cocaine distribution. He argues
that trafficking cocaine in violation of Florida Statute § 893.135
does not qualify as a “serious drug offense” under the Armed Ca-
reer Criminal Act (ACCA), 18 U.S.C. § 924(e)(2). For the following
reasons, we affirm.
I.
In 2018, Pugh was indicted and charged with conspiracy to
possess with intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. §§ 841(b)(1)(B) and 846, and possession with
intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). Pugh plead not guilty to all counts.
Pursuant to 21 U.S.C. § 851, the government filed an infor-
mation and notice alleging that, under the charging statutes, Pugh
was subject to an increased sentence due to his prior conviction in
November 2001 for trafficking cocaine in violation of Florida Stat-
ute § 893.135(1)(b). Pugh moved to strike the government’s infor-
mation and notice, arguing that he was not subject to enhanced
sanctions based on his prior conviction. Specifically, Pugh argued
that § 893.135(1)(b), Fla. Stat. (2001), does not qualify as a “serious
drug offense” under the ACCA because purchasing cocaine—one
of the elements of the Florida statute—does not satisfy the ACCA’s
USCA11 Case: 19-13732 Document: 43-1 Date Filed: 01/31/2023 Page: 3 of 3
21-12173 Opinion of the Court 3
definition. The district court denied Pugh’s motion to strike. His
case proceeded to a bench trial, and he was found guilty on all
counts. Pugh was sentenced to 120 months’ imprisonment, fol-
lowed by eight years of supervised release. He timely appealed.
II.
We review de novo whether a state conviction qualifies as a
serious drug offense under the ACCA. United States v. White, 837
F.3d 1225, 1228 (11th Cir. 2016).
After the parties briefed their arguments on appeal, our
court held Pugh’s case in abeyance until the Florida Supreme Court
issued a decision answering our certified questions in United States
v. Conage, 976 F.3d 1244 (11th Cir. 2020) (Conage I). Conage I
presented the same issue as the one before us in Pugh’s appeal. The
Florida Supreme Court has now answered our certified questions,
see Conage v. United States, 346 So. 3d 594 (Fla. 2022) (Conage II),
and we subsequently decided Conage’s case, see United States v.
Conage, 50 F.4th 81 (11th Cir. 2022) (per curiam) (Conage III).
In Conage III, we found the district court properly relied on
the defendant’s prior conviction under § 893.135(1)(b), Fla. Stat., as
a serious drug offense for purposes of the ACCA. Conage III, 50
F.4th at 82. Following the Florida Supreme Court’s guidance and
our decision in Conage III, we hold that Pugh’s conviction under §
893.135, Fla. Stat., qualifies as a serious drug offense for purposes
of the ACCA and therefore affirm his sentence.
AFFIRMED.