United States v. Jason Lee Dover

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17650
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00022-SCB-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON LEE DOVER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 29, 2017)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Jason Dover appeals his sentence for conspiracy to distribute and possess
with intent to distribute 50 grams or more of methamphetamine. He argues that the
district court incorrectly applied a career-offender enhancement because the
Florida drug-trafficking statute under which he was previously convicted does not
have an element of intent to distribute, and therefore, cannot satisfy the controlled-
substance offense definition under the enhancement. He further argues that
because the Florida statute prohibits mere purchase, which is broader than the
controlled-substance offense definition, the district court could not apply the
enhancement as his plea of nolo contendere did not admit to any particular facts.
After careful review of the record and the parties’ briefs, we affirm.
I.
When reviewing the district court’s findings with respect to guidelines
issues, we consider legal issues de novo, factual findings for clear error, and the
court’s application of the United States Sentencing Guidelines (Guidelines) to the
facts with due deference, which is akin to clear error review. United States v.
Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). Whether the defendant qualifies
as a career offender is a question of law that we review de novo. United States v.
Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006).
II.
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The Guidelines provide for enhanced penalties for certain defendants with
two or more prior felony convictions for either a crime of violence or a controlled-
substance offense. U.S.S.G. § 4B1.1(a). A “controlled substance offense” is “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.” Id. §
4B1.2(b).
At the time of Dover’s convictions, Florida’s drug-trafficking statute
provided felony penalties for any person “who knowingly sells, purchases,
manufactures, delivers, or brings into [Florida], or who is knowingly in actual or
constructive possession of … 14 grams or more of … methamphetamine.” Fla.
Stat. § 893.135(1)(f)1 (2007).
A sentencing “court should look [only] at the elements of the convicted
offense [and] not the conduct underlying the conviction, in determining [whether]
a prior conviction is a controlled-substance offense under [U.S.S.G.] § 4B1.2.”
United States v. Lipsey, 40 F.3d 1200, 1201 (11th Cir. 1994) (per curiam). Where
the statutory language encompasses some offenses that would satisfy the
enhancement statute and others that would not, the sentencing court may look to
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Shepard1 documents, which are a narrow universe of documents that includes any
charging documents, the written plea agreement, the transcript of the plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.” United States v. Palomino Garcia, 606 F.3d 1317, 1336–37 (11th Cir.
2010). This modified categorical approach may be used in cases where the
defendant pleaded no contest to the prior offenses. See, e.g., United States v. Diaz-
Calderone, 716 F.3d 1345, 1347–48 (11th Cir. 2013). With this background, we
will address each of Dover’s arguments in turn.
III.
First, Florida’s drug-trafficking statute has an implicit intent-to-distribute
element. We compared it to Georgia’s drug-trafficking statute and held that the
statute infers intent to distribute from the quantity of drugs. United States v.
James, 430 F.3d 1150, 1154–55 (11th Cir. 2005), overruled on other grounds by
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). In James, we
evaluated whether a conviction under Florida’s drug-trafficking statute qualified as
a “serious drug offense” under the Armed Career Criminal Act (ACCA). Id. at
1153. We stated that it was not necessary that the statute include an explicit
reference to the intent-to-distribute element under the ACCA’s definition of a
“serious drug offense,” because that definition includes any offense “involving”
1
Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005).
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intent to distribute.2 Id. at 1154–55. We also explained that holding that a drug-
trafficking conviction in Florida was not a serious drug offense would produce an
anomalous result, as drug trafficking is the most serious drug offense in the state.
Id. at 1155.
In United States v. White, we concluded that a defendant’s conviction under
a similar Alabama statute was a serious drug offense under the ACCA and that the
court is “bound under the prior precedent rule to follow our decision in James
unless and until it is abrogated by an en banc decision or by a Supreme Court
decision.” United States v. White, 837 F.3d 1225, 1235 (11th Cir. 2016) (per
curiam), reh’g denied en banc, __ F.3d __ (11th Cir. August 24, 2017). We noted
that Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276 (2013) and Mathis
v. United States, 579 U.S. ___, 136 S. Ct. 2243 (2016) did not overrule or abrogate
James, because they addressed only the question of when a court may use a
modified categorical approach and did not address whether it is appropriate to infer
intent to distribute based on the quantity of drugs. Id. at 1235 & n.13.
Therefore, because Dover’s predicate convictions met the threshold quantity
amount, an intent to distribute is inferred in each conviction. Dover’s prior drug-
trafficking convictions were for 14 and 28 grams of methamphetamine. At the
2
The ACCA defines a serious drug offense, in part, as “an offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled
substance” and punishable by a maximum term of imprisonment of ten years or more. 18 U.S.C.
§ 924(e)(2)(A)(ii).
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time of his convictions, 14 or more grams of methamphetamine was the threshold
to trigger an element of intent to distribute. See Fla. Stat. § 893.135(1)(f)1 (2007).
Second, we can determine that Dover was not convicted of the purchase of
methamphetamine, the least culpable conduct under the Florida statute, because the
charging documents do not include it, and therefore, we can eliminate the
possibility of his convictions not amounting to controlled-substance offenses.
Under the modified categorical approach, we are able to examine Shepard
documents in order to decide whether Dover’s convictions meet the career-
offender enhancement requirements. See Palomino Garcia, 606 F.3d at 1328–29.
In Shannon, we held that a conviction for purchase of drugs under Florida’s drug-
trafficking statute was not a controlled-substance offense, because § 4B1.2(b) does
not include purchase of drugs as a controlled-substance offense. United States v.
Shannon, 631 F.3d 1187, 1190 (11th Cir. 2011). Though we acknowledged that
possession with intent to distribute was a controlled-substance offense, we
explained that if a sentencing court could not determine the statutorily-prohibited
act for which the defendant was convicted, it must assume that he was convicted
for mere purchase, the least culpable conduct. Id. at 1189–90.
Here, unlike Shannon, the district court could determine that Dover’s
trafficking convictions were not based upon mere purchase, despite his no-contest
plea. Although Dover did not admit to any particular set of facts in his plea
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colloquy, the court could determine the basis for his convictions based on the other
allowable documents. Specifically, the charging documents in those convictions
charged him with sale, delivery, or possession of the requisite amount of drugs, not
with purchase. Thus, although mere purchase is not a controlled-substance
offense, the district court was not required to assume that Dover’s convictions were
for purchase.
IV.
The district court correctly determined that Dover’s drug-trafficking
offenses qualified as controlled-substance offenses. In those convictions, the
charging documents did not charge Dover with purchase but rather with the sale,
delivery, or possession of the requisite amount of drugs. These predicate felonies
are enough to implicate the career-offender enhancement in light of his last
conviction.
AFFIRMED.
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