United States v. Michael Anthony Conage

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13975
________________________
D.C. Docket No. 6:17-cr-00028-GKS-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY CONAGE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 30, 2020)
Before ED CARNES, JULIE CARNES, and CLEVENGER,∗ Circuit Judges.
JULIE CARNES, Circuit Judge:
∗ Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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The outcome of this criminal sentencing appeal turns on how we interpret
Florida’s cocaine trafficking statute, Florida Statutes § 893.135(1)(b)1. Defendant
Michael Conage, who was convicted of being a felon in possession of firearms and
ammunition in violation of 18 U.S.C. § 922(g), was sentenced under the Armed
Career Criminal Act (the “ACCA”). The ACCA imposes a 15-year mandatory
minimum sentence for a defendant convicted under § 922(g) who has three
previous convictions for a violent felony or a serious drug offense as defined by
the ACCA. See 18 U.S.C. § 924(e)(1). The district court held that Conage had
been convicted of three qualifying drug offenses, one of which offenses was
trafficking in cocaine in violation of Florida Statutes § 893.135(1)(b)1., and the
court sentenced Conage accordingly. Conage appeals that ruling, arguing that a
Florida drug trafficking conviction cannot satisfy the ACCA’s definition of a
serious drug offense.
The ACCA defines a “serious drug offense” as an offense “involving
manufacturing, distributing, or possessing with intent to manufacture or distribute,
a controlled substance.” See 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). To
determine whether the district court erred by sentencing Conage under the ACCA,
we must decide whether trafficking cocaine in violation of Florida Statutes
§ 893.135(1)(b)1. satisfies the ACCA’s definition of a serious drug offense.
2
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Florida Statutes § 893.135(1)(b)1. enumerates six methods of trafficking cocaine:
selling, purchasing, manufacturing, delivering, bringing into the state, or
knowingly possessing cocaine in an amount that Florida law specifies as
constituting a trafficking quantity: 28 grams or more of cocaine. Under federal
law interpreting the ACCA, a § 893.135(1) conviction can qualify as a serious drug
offense under the ACCA only if each one of these six alternatives satisfies the
ACCA definition of a serious drug offense.
Conage argues that a conviction based on one of these methods of violating
the statute—“purchasing” a trafficking quantity of cocaine,1—would not qualify
under federal law as a serious drug offense, which, to repeat, requires that the
conduct prohibited by the particular drug statute “involve” 2 the manufacture,
distribution, or possession with the intent to distribute a controlled substance. If he
is right, the district court improperly sentenced him pursuant to the ACCA
because, again under federal law, if even one of the methods for violating Florida
Statutes § 893.135(1) fails to constitute a serious drug offense, then the entire
statute falls for purposes of being counted as a predicate conviction for ACCA
purposes. So, this Court must now decide if the purchase of a trafficking quantity
1
We use interchangeably the terms “a trafficking quantity of cocaine” and “28 grams or more
of cocaine.”
2
We discuss at greater length the definition of the term “involve.” See infra at 12-20.
3
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of cocaine qualifies as a serious drug offense as defined by the ACCA. The
answer to this question, however, depends on how Florida Statutes § 893.135(1)
defines “purchasing,” or, stated another way, what the State must prove in order to
convict a defendant of purchasing a trafficking quantity of cocaine.
We are unable to answer the pivotal question in this appeal, however,
because neither Florida Statutes § 893.135(1) nor Florida caselaw sets out the
elements of the offense of trafficking by purchasing a controlled substance or
otherwise defines clearly the term “purchasing” as used in the statute. We can
safely assume that the question whether a conviction for drug trafficking under
Florida law qualifies as an ACCA serious drug offense will arise in many cases,
meaning that this issue is certain to recur. Moreover, the significance of the
answer to this question is enormous. Florida Statutes § 893.135(1), which
addresses drug trafficking for multiple types of controlled substances, is the most
serious of all drug offenses under Florida law. Yet, if Conage is correct in his
assertion that the “purchasing” of a trafficking quantity of a controlled substance
does not involve possession with intent to distribute that substance, then no Florida
drug trafficking conviction under § 893.135(1) can ever qualify as an ACCA
predicate offense, notwithstanding that statute’s status as Florida’s most serious
criminal drug statute. Thus, in addition to being unsettled under Florida law, the
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issues presented by this appeal are sufficiently important to warrant certification to
the Florida Supreme Court.
I. BACKGROUND
In September 2016, Port Orange police officers executed a search warrant at
an apartment in Port Orange, Florida after receiving an anonymous tip reporting
suspicious activity at the apartment and observing defendant Michael Conage
conduct what the police believed were numerous drug transactions out of the
apartment. The search yielded two guns, multiple rounds of ammunition,
hydromorphone (including 94 grams of hydromorphone pills and 34 grams of
dilaudid) and multiple other drugs (oxycodone, amphetamine, cocaine base, and
marijuana) in a bedroom near Conage’s wallet and personal effects. Having
identified Conage as a convicted felon based on his driver’s license and Volusia
County jail photographs, the police arrested him for being a felon in possession of
a firearm and ammunition and for possessing narcotics.
The police reviewed Conage’s criminal history and discovered that he had at
least nine felony convictions in Volusia County, Florida, including drug
convictions, a conviction for grand theft of a motor vehicle, and two convictions
for fleeing and eluding a law enforcement officer. Conage was charged in a
superseding indictment with possessing firearms and ammunition as a convicted
felon in violation of 18 U.S.C. §§ 922(g) and 924(e) and possessing
5
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hydromorphone with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C). A jury convicted Conage on both counts charged in the indictment
after a two-day trial.
Conage’s presentence report (“PSR”) concluded that he should be sentenced
as an armed career criminal under the ACCA, which imposes a 15-year mandatory
minimum sentence when a defendant who violates § 922(g) has three previous
convictions for a violent felony or a serious drug offense as defined by the ACCA.
See 18 U.S.C. § 924(e)(1). The PSR determined that Conage had been convicted
of three state offenses that satisfied the ACCA’s definition of a serious drug
offense, one of which offenses was trafficking cocaine in violation of Florida
Statutes § 893.135(1)(b)1. 3
Conage objected to the PSR’s conclusion that he should be sentenced under
the ACCA, arguing that his cocaine trafficking conviction did not qualify as a
serious drug offense under the ACCA. Conage noted that Florida Statutes §
893.135(1)(b)1. prohibits trafficking cocaine by various means, and that federal
law required the district court to assume that Conage had committed the offense by
purchasing a trafficking quantity of cocaine: an act that Conage says does not
3
Conage was arrested on this charge in April 2006 and, following his conviction, sentenced in
September 2006 to serve ten years in the Florida Department of Corrections, which sentence was
to run concurrently with a 10-year sentence for an unrelated felony conviction for fleeing and
attempting to elude. He was released from custody on August 9, 2015, about a year prior to his
arrest on the charges that led to his conviction in the present case.
6
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involve manufacturing, distributing, or possessing cocaine with intent to distribute,
as is required for an offense to qualify as an ACCA predicate offense. Without this
trafficking conviction, Conage would have only two qualifying convictions, not the
three convictions necessary to trigger the ACCA. The district court disagreed with
Conage’s argument and sentenced him to serve 15 years as required by the ACCA.
Conage appeals his sentence. As he did in the district court, Conage argues
that his cocaine trafficking conviction—which, for purposes of this appeal and
regardless of the actual facts,4 we must assume to be a conviction for trafficking by
purchasing—does not qualify as a serious drug offense under the ACCA, meaning
that he lacks the three qualifying convictions necessary to trigger the ACCA. The
question presented by this appeal is thus whether a conviction under Florida law
for trafficking by purchasing a trafficking quantity of cocaine (28 or more grams)
is an offense “involving manufacturing, distributing, or possessing with intent to
manufacture or distribute” a controlled substance, which is required to satisfy the
ACCA’s definition of a serious drug offense. See 18 U.S.C. § 924(e)(2)(A)(ii)
(emphasis added).
4
As set out in the Presentence Report, the actual facts underlying Conage’s Florida drug
trafficking conviction offer no suggestion that the charge related to a purchase by Conage of
drugs. Instead, the report indicates that Conage was arrested after being found driving a vehicle
with a suspended driver’s license and in possession of 36 grams of cocaine.
7
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II. STANDARD OF REVIEW
We review de novo the legal question whether a state conviction qualifies as
a serious drug offense under the ACCA. United States v. Robinson, 583 F.3d
1292, 1294 (11th Cir. 2009). When conducting our review, we are “bound by
federal law when we interpret terms in the ACCA” and “bound by state law when
we interpret elements of state-law crimes.” United States v. Braun, 801 F.3d 1301,
1303 (11th Cir. 2015).
III. DISCUSSION
A. The Relevant Statutes: the ACCA and the Florida Drug
Trafficking Statute
As noted, the ACCA requires a 15-year mandatory minimum sentence when
a defendant who has three previous convictions for a serious drug offense violates
§ 922(g). See 18 U.S.C. § 924(e)(1). The ACCA defines a serious drug offense as
an offense “involving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.” Id. § 924(e)(2)(A)(ii). This
Court has adopted an “expansive interpretation of the word ‘involving’ as used in
the ACCA’s definition of a serious drug offense.” United States v. White, 837 F.3d
1225, 1233 (11th Cir. 2016), cert. denied, 138 S. Ct. 1282 (2018). Pursuant to that
interpretation, a state offense can qualify as an ACCA serious drug offense even
though it “do[es] not have as an element the manufacture, distribution, or
possession of drugs with intent to manufacture or distribute.” Id. (internal
8
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quotation marks omitted). See also United States v. James, 430 F.3d 1150, 1154
(11th Cir. 2005) (noting that the ACCA’s use of the broad “involving language
makes clear that the term serious drug offense may include even those state
offenses that do not have as an element the manufacture, distribution, or possession
of drugs with intent to manufacture or distribute” (internal quotation marks
omitted)), overruled on other grounds by Johnson v. United States, 576 U.S. __,
135 S. Ct. 2552 (2015). Consistent with this Court’s precedent, the Supreme Court
recently clarified that the ACCA’s definition of a serious drug offense “requires
only that the state offense involve the conduct specified in the [ACCA].” See
Shular v. United States, __U.S.__, 140 S. Ct. 779, 782 (2020) (emphasis added)
(affirming this Court’s precedent that a state drug offense need not “match” the
elements of a generic drug offense).
To determine whether a defendant’s state conviction is for a serious drug
offense under the ACCA, we apply what is described as a “categorical approach.”
See Robinson, 583 F.3d at 1295. The categorical approach requires that we
consider only the fact of the defendant’s conviction and the statutory definition of
the state offense at issue, rather than the facts underlying the defendant’s
conviction. See id. Under the categorical approach, a conviction qualifies as a
serious drug offense only if the state statute under which the defendant was
convicted defines the offense in the same way as, or more narrowly than, the
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ACCA’s definition of a serious drug offense. See Descamps v. United States, 570
U.S. 254, 261 (2013). If it does not do so, the state conviction does not qualify as a
serious drug offense regardless of the actual conduct that resulted in the
defendant’s conviction. 5 See id.
The state statute at issue here is the Florida drug trafficking statute, Florida
Statutes § 893.135(1)(b)1. 6 It provides that the sale, purchase, manufacture,
delivery, importation into the state, or possession (actual or constructive) of
between 28 grams and 150 kilograms of cocaine 7 constitutes the crime of
“trafficking in cocaine,” which is a first-degree felony. This drug trafficking
5
Under certain circumstances, a sentencing court may use a modified categorical approach to
determine whether a state conviction qualifies as a serious drug offense. To determine whether
the conviction qualifies as a predicate conviction for sentencing enhancement purposes, this
“modified” approach permits consideration of certain court documents to identify the pertinent
facts that formed the basis of the conviction. See Descamps, 570 U.S. at 261. But we have held
that the modified categorical approach does not apply to a conviction for trafficking opioids
under Florida Statutes § 893.135(1)(c). See Cintron v. United States Att’y Gen., 882 F.3d 1380,
1385 (11th Cir. 2018) (citing Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)). The
relevant language of Florida Statutes § 893.135(1)(b)1. is identical to the language of Florida
Statutes § 893.135(1)(c). The Court’s ruling in Cintron thus applies to a conviction under
§ 893.135(1)(b)1., meaning that the categorical approach governs this case. See Francisco v.
United States Att’y Gen., 884 F.3d 1120, 1134 (11th Cir. 2018) (“The holding of Cintron
controls our decision because Fla. Stats. § 893.135(1)(b) and (1)(c) have substantively identical
language.”).
6
“Any person who knowingly sells, purchases, manufactures, delivers, or brings into this
state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine .
. . but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first
degree, which felony shall be known as “trafficking in cocaine[.]” Fla. Stats. § 893.135(1)(b)1.
7
A conviction based on the sale, purchase, manufacture, delivery, bringing into the state, or
actual or constructive possession of 150 kilograms or more of cocaine triggers a mandatory life
sentence. Fla. Stats. § 893.135(1)(b)(2).
10
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statute imposes a 30-year maximum sentence as well as mandatory minimum
sentences and fines that increase in severity depending on the amount of cocaine
involved, ranging from a 3-year minimum sentence and $50,000 fine for
trafficking in 28 to 200 grams of cocaine to a 15-year minimum sentence and
$250,000 fine for trafficking in 400 grams to 150 kilograms of cocaine. Fla. Stats.
§ 893.135(1)(b)1., § 775.082(3)(b).
Thus, § 893.135(1)(b)1. sets out six ways in which a conviction for
trafficking cocaine can be based: selling, purchasing, knowingly possessing,
manufacturing, delivering, or bringing into the state cocaine in an amount that
Florida law specifies as constituting a trafficking quantity—28 grams or more of
cocaine. Nevertheless, under the categorical approach, a conviction for trafficking
cocaine, or any other type of drug prohibited by Florida Statutes § 893.135(1), can
qualify as an ACCA predicate only if each of the six methods set out in the statute
satisfies the ACCA’s definition of a serious drug offense. See id. In other words,
whether a state conviction for trafficking illegal drugs in violation of § 893.135(1)
qualifies as a serious drug offense under the ACCA is an all-or-nothing
proposition. If even one method of sustaining a drug trafficking conviction does
not qualify as a serious drug offense, then the entire statute is disqualified as a
predicate conviction for ACCA purposes.
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Conage acknowledges that our Court has held that as to the language in
§ 893.135(1)(b)1. providing that the possession of a threshold amount of cocaine
constitutes drug trafficking, the Florida statute satisfies the ACCA provision
requiring a state “serious drug offense” to criminalize conduct involving
possession with the intent to distribute a controlled substance. 18 U.S.C.
§ 924(e)(2)(A)(ii). The specific question before this Court then is whether the
purchase of a trafficking quantity of cocaine under Florida’s drug trafficking
statute likewise involves the possession of that substance.
B. Precedent Interpreting the Term “Involves” in the ACCA
As relevant to this appeal, the ACCA defines a “serious drug offense” as “an
offense under State law involving [the] . . . possessing with intent to . . . distribute,
a controlled substance . . . for which a maximum term of imprisonment of ten years
or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). As to the term
“involve,” the Supreme Court has recently spoken, as has this Court in its previous
interpretation of the Florida drug trafficking statute and another similar drug
statute. We turn to those cases.
1. The Supreme Court’s Decision in Shular v. United States
In Shular v. United States, ___U.S.___, ___, 140 S. Ct. 779, 781 (2020), the
district court imposed a 15-year sentence under the ACCA based on the
defendant’s prior Florida convictions under Florida Statute § 893.13(1)(a), which
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“makes it a crime to ‘sell, manufacture, or deliver, or possess with intent to sell,
manufacture, or deliver, a controlled substance.’” Id. at ___, 140 S. Ct. at 784.
Our Court had affirmed Shular’s ACCA-enhanced sentence, applying our circuit
precedent that a “serious drug offense,” as defined in the ACCA’s
§ 924(e)(2)(A)(ii), requires only that the activities addressed in the prior predicate
state drug offense involve certain activities, and not that it match the elements of a
generic drug offense. United States v. Shular, 736 F. App’x 876, 877 (11th Cir.
2018) (applying United States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014)).
The Supreme Court granted certiorari to resolve a split in the circuit courts
as to whether the descriptive terms used in § 924(e)(2)(A)(ii)’s “serious drug
offense” definition (1) require a comparison to the elements of a generic drug
offense 8 or (2) merely identify or describe activities or conduct that the state drug
offense involves. Shular, ___U.S. at ___, 140 S. Ct. at 783–84. In affirming this
Court’s decision, the Supreme Court told us two important things about the terms
in this ACCA definition: (1) “the terms in § 924(e)(2)(A)(ii)—‘manufacturing,
distributing, or possessing with intent to manufacture or distribute, a controlled
substance’—are unlikely names for generic offenses” and instead “[t]hose words
undoubtedly can be used to describe conduct,” and (2) “by speaking of activities a
8
The Supreme Court explained that a generic version of a crime meant “the elements of the
offense as commonly understood.” Shular, ___U.S. at ___, 140 S. Ct. at 783 (quotation marks
omitted).
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state-drug offense ‘involves,’ § 924(e)(2)(A)(ii) suggests the descriptive terms
immediately following that word ‘involv[es]’ identify conduct.” Id. at ___, 140 S.
Ct. at 785.
The Supreme Court also clarified that the ACCA’s definition of “serious
drug offense” “requires only that the state offense involve the conduct specified in
the federal statute [the ACCA]; it does not require that the state offense match
certain generic offenses.” Id. at ___, 140 S. Ct. at 782. The Supreme Court
confirmed that § 924(e)(2)(A)(ii) calls for application of a categorical approach,
but one that determines whether state drug offenses “involve,”—that is
“necessarily requir[e]”—the types of conduct identified in § 924(e)(2)(A)(ii). Id.
at ___, 140 S. Ct. at 785–86.9
Shuler had argued that because Florida’s § 893.13(1)(a) statute does not
include a mens rea requirement, while most other states’ drug laws require that the
defendant know the substance is illicit, the Florida statute did not qualify as a
serious drug offense under the ACCA. Id. at ___, 140 S. Ct. at 787. The Supreme
Court characterized the parties’ opposing positions as being a choice between
applying the ACCA “to all offenders who engaged in certain conduct” versus
applying the ACCA “to all who committed certain generic offenses.” Id.
9
In Shular, “the parties agree[d] that ‘involve’ means ‘necessarily requir[e].’” ___U.S. at
___, 140 S. Ct. at 785 (second alteration in original).
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(emphasis added). Thus, while “both parties’ interpretations of 18 U.S.C.
§ 924(e)(2)(A)(ii) achieve a measure of consistency,” the Court was “persuaded
that Congress chose the former.” Id. at ___, 140 S. Ct. at 787 (emphasis added).
Further, Shular had argued that the terms in the ACCA’s definition referred
to “elements,” from which he inferred that there must also be “elements” in the
state drug offense. Rejecting Shular’s argument, the Supreme Court held that the
terms in the ACCA definition referred to conduct, not elements. The Court
explained:
(1) “if Congress was concerned that state drug offenses lacked
clear, universally employed names, the evident solution was
to identify them instead by conduct” and to use “involving”
rather than “is”; and
(2) “Section 924(e)(2)(A)(ii)’s text and context leave no doubt
that it refers to an offense involving the conduct of
‘manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.’ Because
those terms describe conduct and do not name offenses, a
court applying § 924(e)(2)(A)(ii) need not delineate the
elements of generic offenses.”
Id. at ___, 140 S. Ct. at 786–87 (emphasis in original).
Using this categorical approach outlined in Shular, our focus in this case
therefore is on the conduct that the “purchasing” element of Florida Statute
§ 893.135(1)(b)1. prohibits and on whether that conduct necessarily involves the
conduct prohibited in the serious drug offense provision of the ACCA. Id. at ___,
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140 S. Ct. at 787. As to the latter question, we have precedent that assists us in this
inquiry, and we turn to that precedent now.
2. Eleventh Circuit Precedent
Our Court has not previously addressed whether the “purchasing” element in
Florida’s drug trafficking statute, § 893.135(1)(b)1., meets the requirements for a
serious drug offense set out in the ACCA, but we have addressed the question
whether that statute’s “possession” element does so. And we determined that it
did.
To repeat, one of the six acts prohibited in the Florida drug trafficking
statute is the knowing actual or constructive possession of 28 grams or more of
cocaine. In United States v. James, 430 F.3d 1150 (11th Cir. 2005), the defendant
had been sentenced under the ACCA based, in part, on a prior conviction under
Florida Statutes § 893.135(1)(b)1. for possessing between 200 and 400 grams of
cocaine in violation of § 893.135(1)(b)1. See id. at 1152. The sentencing court
determined that the conviction did not qualify as a serious drug offense under the
ACCA because § 893.135(1)(b)1. “did not include as an element of proof that [the
defendant] had intended to distribute [the] 200 to 400 grams of cocaine” that he
possessed. Id.
This Court reversed, concluding that trafficking by possessing 28 grams or
more of cocaine, in violation of Florida Statutes § 893.135(1)(b)1., qualifies as an
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ACCA serious drug offense because the statute involves possession of a controlled
substance with the intent to distribute it. Id. at 1156. We noted that “[t]he
language of the Florida statute need not exactly match the ACCA’s definition of a
‘serious drug offense,’” as the ACCA’s “definition broadly includes any offense
‘involving’ the manufacture, distribution, or possession with intent to manufacture
or distribute.” Id. at 1155 (emphasis added). Further, “[t]his ‘involving’ language
makes clear that the term ‘serious drug offense’ may include even those state
offenses that do not have as an element the manufacture, distribution, or possession
of drugs with intent to manufacture or distribute.” Id. On that score, we noted that
like Georgia, Florida’s drug trafficking statute requires that “the defendant must be
in possession of a significant quantity of drugs, namely 28 grams, before the state
deems the offense to be trafficking,” id. at 1155, and that “Florida’s drug
trafficking statute [] ‘infers an intent to distribute once a defendant possesses a
certain amount of drugs.’” Id. at 1154.
Further explaining its rationale, the Court in James observed that Florida’s
three-tiered drug offense scheme includes: (1) the lowest tier, which prohibits
possession of any amount of a controlled substance, (2) a middle tier that prohibits
possession with intent to distribute a controlled substance, and (3) the highest tier,
which prohibits trafficking in a controlled substance, including trafficking by
possessing a certain quantity of the substance. See id. at 1154. The Court
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reasoned that, by placing trafficking at the top of this three-tiered system and
deeming it a more serious crime than possession with intent to distribute, Florida
law “infers an intent to distribute once a defendant possesses” a sufficiently large
quantity of a controlled substance—which, in the case of cocaine, is 28 grams or
more. See James, 430 F.3d at 1155. That is, Florida’s three-tiered scheme
“recognizes that someone who is convicted of drug trafficking . . . plans on
distributing and thereby trafficking those drugs.” See id. at 1154 (internal
quotation marks omitted). If federal law does not also infer an intent to distribute,
the Court noted, an anomaly would result because the most serious drug offense in
Florida law—trafficking—would not qualify as a serious drug offense under the
ACCA while a lesser Florida drug offense that involved a lower quantity of drug,
but whose elements matched exactly the federal statute, would qualify. Id. at 1155.
In short, we concluded that “the Florida statute falls within the broad definition of
a ‘serious drug offense.’” Id.
Our Court recently reaffirmed the reasoning of James and applied its holding
to a conviction for trafficking by possession of cocaine under an Alabama
trafficking statute that is nearly identical to Florida’s trafficking statute. See
United States v. White, 837 F.3d 1225 (11th Cir. 2016), cert. denied, 138 S. Ct.
1282 (2018). The defendant in White had a prior conviction for trafficking by
possessing 28 grams of cocaine in violation of Alabama Code § 13A-12-231,
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which provides that a person unlawfully traffics in cocaine if he “knowingly sells,
manufactures, delivers, or brings into [the] state, or . . . is knowingly in actual or
constructive possession of, 28 grams or more of cocaine[.]” Ala. Code § 13A-12-
231(2). As in Florida, the Alabama statute is part of a three-tiered scheme for
punishing drug offenses that includes, from the least serious offense to the most
serious offense: (1) possession of a controlled substance, (2) distribution or
possession of a controlled substance with intent to distribute, and (3) trafficking in
a controlled substance, with trafficking being inferred only when the controlled
substance involved in the offense is of a minimum quantity level. See Ala. Code
§§ 13A-12-211, 212.
Applying James, this Court rejected the defendant’s argument in White that
his Alabama cocaine trafficking conviction was not a serious drug offense under
the ACCA because it did not necessarily involve “manufacturing, distributing, or
possessing with [the] intent to manufacture or distribute” cocaine. See White, 837
F.3d at 1229 (quoting the ACCA’s definition of a serious drug offense). Pursuant
to James, we explained, an intent to distribute could be inferred from the large
quantity of cocaine that the statute required a defendant to possess. See id. at 1232.
Failing to make that inference, we further observed, would result in the anomaly
the Court sought to avoid in James whereby trafficking, the most serious drug
crime under Alabama law, would not qualify as an ACCA serious drug offense
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while the less serious crime of possession with intent to distribute would qualify.
See id. at 1233. We therefore held that the defendant’s Alabama conviction for
trafficking by possessing 28 grams or more of cocaine satisfied the ACCA’s
definition of a serious drug offense. See id. at 1235.
C. Interpretation of Florida Law Concerning the Conduct of
Purchasing a Trafficking Quantity of a Controlled Substance
Thus, trafficking by purchasing cocaine in violation of Florida Statutes
§ 893.135(1)(b)1. might qualify as a serious drug offense under the ACCA even
though the act of purchasing cocaine is not expressly enumerated in the ACCA’s
definition of a serious drug offense. Our Court having previously determined that
possession of a trafficking amount of cocaine under Florida’s drug trafficking
statute constitutes possession with the intent to distribute for purposes of the
ACCA, the only question now before us is whether the purchase of a trafficking
quantity of cocaine likewise yields the same conclusion. To speak in more precise
legal terms, we must decide whether the purchase of a trafficking quantity of
drugs, as specified by the Florida drug trafficking statute, “involves” the
possession of that drug, as that term is defined in the ACCA. As noted, this is a
case of first impression for us.10
10
In United States v. Shannon, 631 F.3d 1187 (11th Cir. 2011), we were required to address
the question whether the Florida drug trafficking statute at issue here, Florida Statutes
§ 893.135(1)(b)1., constituted a “controlled substance offense” under the federal Sentencing
Guidelines. The Guidelines characterize a defendant as a career offender, subject to an enhanced
sentence, when that defendant has at last two prior felony convictions of either a crime of
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Under our Court’s precedent and pattern jury instructions, “possession”
includes both actual and constructive possession. The pattern instructions provide
that “‘actual possession’ of a thing occurs if a person knowingly has direct physical
control of it” and that “‘constructive possession’ of a thing occurs if a person does
not have actual possession of it, but has both the power and the intention to take
control over it later.” Eleventh Circuit Pattern Instructions (Criminal Cases) § S6
(Feb. 2020). We have stated that “[c]onstructive possession exists when the
defendant exercises ownership, dominion, or control over the item or has the
power and intent to exercise dominion or control.” United States v. Beckles, 565
F.3d 832, 841 (11th Cir. 2009) (quotation marks omitted).
violence or a controlled substance offense. See U.S.S.G. § 4B1.1(a). The Guidelines define a
controlled substance offense as a felony offense “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.
§ 4B1.2(b) (emphasis added). The Guidelines thus require that the statute prohibit specified acts
and does not include “purchase” as one of the prohibited acts. Thus, concluding that “the plain
language of § 4B1.2(b) control[led]” our decision and rejecting an argument that “purchase” was
synonymous with “possession,” we held that the defendant’s Florida conviction for trafficking
cocaine did not constitute a controlled substance offense. Shannon, 631 F.3d at 1189.
As noted infra, unlike the Guidelines, the ACCA does not require that the predicate drug
conviction be based on a statute that expressly prohibits one of the specified acts set out in the
ACCA. As noted, in James we held that “[t]he language of the Florida statute need not exactly
match the ACCA’s definition of a ‘serious drug offense,’” as the ACCA’s “definition broadly
includes any offense ‘involving’ the manufacture, distribution, or possession with intent to
manufacture or distribute.” 430 F.3d at 1155 (emphasis added). Thus, the ACCA’s definition
of a serious drug offense is broader than the guidelines definition of a controlled substance
offense. See White, 837 F.3d at 1235 (recognizing that “there is general agreement among the
circuits that the ACCA’s definition of a serious drug offense is broader than the Guidelines
definition of a drug trafficking or a controlled substance offense”). And the question before us
in this case is whether, under the Florida drug trafficking statute, the purchase of a trafficking
quantity of cocaine “involves” the actual or constructive possession of that drug, as set out in the
ACCA, not the Guidelines.
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1. Elements of “Trafficking by Purchase”
The initial question for us to decide then is whether “purchase” under
Florida Statutes § 893.135(1) involves “possession” as federal law under the
ACCA defines that term. That necessarily means we have to understand how
Florida law defines the term “purchase.” Determining what conduct purchasing
necessarily includes under this Florida trafficking statute, however, has proven to
be an uncertain task: hence, our need for guidance by the Florida Supreme Court.
In the first place, not only does the statute fail to set out the elements for a
“purchase,” but the Florida pattern instructions for this offense nowhere define the
term. The instructions do define “sell”: “‘Sell’ means to transfer or deliver
something to another person in exchange for money or something of value or a
promise of money or something of value.” Fla. Std. Jury Instr. (Crim) § 25.7(a)
(2019).
From that, one might reasonably assume that “purchase” would be defined
as the converse of “sell,” meaning that a purchaser would have both paid for and
received delivery. Indeed, common dictionary definitions suggest that a completed
purchase requires both payment for and delivery of the purchased item. For
example, Webster’s defines the term purchase to mean “to obtain by paying money
or its equivalent.” Webster’s II New Riverside University Dictionary 955 (1988)
(emphasis added). The Oxford English Dictionary similarly defines the term
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purchase to mean “to acquire in exchange for payment in money or an equivalent.”
Oxford English Dictionary (3d ed. 2007) (emphasis added). If either definition is
applicable to Florida Statutes § 893.135(1), a defendant would presumably be
required to pay for and obtain or acquire a trafficking quantity of cocaine in order
to violate the statute by purchasing cocaine. And obtaining or acquiring cocaine
would certainly seem to involve possession of that cocaine. Moreover, even if
payment is all that is required to constitute a completed purchase under the Florida
statute, the question would then become whether that conduct could still constitute
constructive possession, which, to repeat, occurs if a defendant has the power and
intent to exercise dominion or control over the controlled substance.
Yet, the above inferences are derived from a dictionary definition of
“purchase” that is not necessarily synonymous with the meaning that Florida law
ascribes to the term. All of which means that, absent some definitive guidance
from Florida caselaw, the meaning of the term “purchase” in the Florida trafficking
statute remains unclear. Unfortunately, the Florida caselaw addressing convictions
based on trafficking by purchase is sparse and discussion in cases concerning other
methods by which a controlled substance can be trafficked offer, at best, vague
hints as to the meaning of the term. Ultimately, in order to decide this case, we
need to be able to understand what elements must be proved to convict a defendant
of purchasing a trafficking quantity of drugs under the Florida drug trafficking
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statute, § 893.135(1). And, as explained below, we are unable to do so under the
existing caselaw.
First, some background as to the statutory options at the State’s disposal in
this context. As noted, Florida Statutes § 893.135(1) characterizes as drug
trafficking any one of six acts taken with regard to a trafficking quantity of drugs,
two of which are possession and purchasing. Although this statute makes no
express provision for an attempted violation, a person can be convicted of
attempted trafficking pursuant to a default statute—Florida Statutes § 777.04—
which is Florida’s general statute addressing an attempt, solicitation, or conspiracy
to commit a crime. Suarez v. State, 635 So. 2d 154, 155 (Fla. 2d DCA 1994).
Section 777.04 provides that “[a] person who attempts to commit an offense
prohibited by law and in such attempt does any act toward the commission of such
offense, but fails in the perpetration or is intercepted or prevented in the execution
thereof, commits the offense of criminal attempt . . . .” Conviction pursuant to
Florida’s general attempt statute, however, results in a lower sentencing range than
would conviction under the substantive statute for the offense. Suarez, id. Thus, if
the offense attempted is a felony of the first degree, as is the Florida drug
trafficking statute, the offense of criminal attempt to violate that statute becomes a
felony of the second degree, § 777.04(4)(c), and the penalty for that attempt is a
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maximum penalty of 15 years, with no mandatory-minimum applicable,
§ 777.082(6)(b)(2).
Although not addressing an attempt, the Florida drug trafficking statute does
address a conspiracy to traffic in drugs, stating that “[a]ny person who agrees,
conspires, combines, or confederates with another person to commit any act
prohibited by [the substantive provisions of the trafficking statute] commits a
felony of the first degree and is punishable as if he or she had actually committed
such prohibited act.” Fla. Stats. § 893.135(5). Thus, a completed substantive act
under the trafficking statute or a conspiracy to commit one of the listed substantive
acts receives the same punishment; a conviction based on an attempt to violate the
statute under § 777.04, however, triggers a reduced punishment. Suarez, 635 So.
2d at 155 (affirming the mandatory-minimum sentence required under § 893.135
for the defendant’s conviction for conspiracy to traffic in drugs, but reversing that
same sentence for his conviction for attempting to traffic in drugs). In the case
before us, Conage was convicted of actually trafficking in drugs under
§ 893.135(1), not of attempting to traffic in drugs.
In the present case, none of the authorities cited by Conage define the term
“purchase” as used in Florida Statutes § 893.135(1). In fact, the parties have cited
only one case that actually involves a trafficking conviction based on purchasing
drugs: State v. Swider, 654 So. 2d 562, 563 (Fla. 4th DCA 1995). Yet, the issue
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before the Swider court did not concern the definition of “purchase,” and it offers
us no help in defining that term in this case. 11
Nor has a review of cases involving a drug trafficking conviction not based
on purchase enabled us to identify what elements a trafficking offense based on
purchase would include. One Florida case has suggested in dictum that, in the
context of a drug transaction, “[t]o receive or obtain something in exchange for
compensation is to purchase.” Sobrino v. State, 471 So. 2d 1333, 1334 (Fla. 3d
DCA 1985).12 Like the above-quoted dictionary definition of “purchase,” the
Sobrino definition suggests that a purchase offense would involve not only paying
for the drugs, but also receiving them. Yet, Sobrino, which involved a drug
trafficking conviction based on a reverse sting, 13 was issued before the Florida
11
In Swider, the two defendants—Swider and Swidersky—pled guilty to jointly purchasing
cocaine in an amount (45 grams) that met the threshold for conviction under the trafficking
statute, but they sought a more lenient sentence than that statute permits, arguing that they were
first offenders and drug addicts who had purchased the drugs for their own and their friends’
personal use, not for resale. 654 So. 2d at 563. The Florida Fourth District Court of Appeals
rejected the argument. Id. Cf. White, 837 F.3d at 1230 (noting that our precedent has held that
possession of a controlled substance “‘for someone else’s use’ necessarily involves possession
‘with the intent to distribute’ it to another person” for purposes of federal law.) Swider nowhere
discusses the question before us—whether one can be guilty of purchasing a drug under
§ 893.135 without also actually or constructively possessing that drug.
12
In Sobrino, the defendant had not yet handed over the money nor been handed the drugs
when he was arrested.
13
In the familiar jargon of the drug interdiction world, a “reverse sting” occurs when an
undercover law enforcement officer negotiates the sale of illegal drugs to the putative defendant,
who, in this scenario, becomes the purchaser.
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trafficking statute was amended to include purchasing as a means of trafficking.
Moreover, the focus of Sobrino was not on whether the defendant might have met
the elements of an as-yet-not-enacted amendment of the trafficking statute
outlawing the purchase of drugs. Instead, in reversing the conviction, the court
focused on the fact that the defendant had been charged with the wrong offense:
trafficking based on delivery. The charge alleged that the defendants “did
knowingly take or accept delivery for compensation and aided, abetted, counseled
and procured the delivery” of a trafficking quantity of cannabis. Id. at 1334. The
Florida appellate court noted that a putative purchaser does not aid and abet
delivery; instead, “[a] buyer or receiver commits the crime of possession or
attempted possession, not delivery.” Id. at 1335.
In Cunningham v. State, 647 So. 2d 164 (Fla. 1st DCA 1994), the defendant
was convicted of purchasing marijuana in violation of § 893.13,14 not the drug
trafficking statute § 893.135(1). Nevertheless, we assume the definition of the
term “purchase” would be the same in both statutes. The defendant had been
arrested after he “pulled out ‘a roll of money’” to purchase the marijuana and the
undercover officer had displayed the marijuana to be sold, but before the officer
14
Florida Statutes § 893.13, which is a less serious drug offense than is drug trafficking under
§ 893.135(1), was amended in 1993 to delete “purchase” as a potential means of committing the
offenses prohibited by that statute. See Fla. Stats. § 893.13 (1994).
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had laid hands on the money tendered. The Florida appellate court reversed the
conviction “because [defendant] was arrested before the transaction could be
completed.” Id. at 166. The appellate court concluded that there was sufficient
evidence of defendant’s possession of marijuana with intent to purchase it, but not
of an actual purchase. Id. A member of the panel dissented, arguing that “a
completed sale” had occurred even though the defendant had not “physically
hand[ed] [over] money to the officers. The sale with which [defendant] was
charged took place at the point in time when officers delivered the marijuana to
[defendant], and [defendant] agreed to pay for the marijuana . . . . [O]nce the
officers delivered the marijuana to [defendant] following [defendant’s] agreement
to pay for it, the contract was no longer executory and a sale had taken place.” Id.
at 167.
A plausible take-away from this case is that both the majority and the dissent
concluded that a purchase conviction requires the drugs to have been delivered to
the defendant for the purchase to be complete. In addition, the majority also
required the defendant to have actually paid for the drugs for the transaction to be
considered a purchase. In short, Cunningham arguably suggests that a purchase
conviction requires that the transaction be completed, and a completed transaction
would require the purchaser to obtain possession of the purchased drug. Likewise,
in Amaya v. State, 782 So. 2d 984 (Fla. 3d DCA 2001), the appellate court focused
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obliquely on the notion of a “completed sale” in upholding the defendant’s
conviction for trafficking under § 893.135(1). Id. at 985. The case involved a
reverse sting in which the defendant purchaser had both paid for and been handed
the drugs before his arrest. The opinion does not indicate whether the trafficking
charge was based on the defendant’s possession or his purchase of drugs, but it
concluded that the defendant had possession and that “the evidence established a
completed sale.” Id. It is uncertain, though, whether the State had relied on a
purchase theory—with the appellate court suggesting that a completed sale was
necessary to support such a theory—or whether the State had charged only
trafficking by possession.
It is Conage’s position that proof of trafficking by purchase does not require
the State to prove that the defendant ever possessed the drugs at issue, which, if
true, would mean that it would be easier for the State to prove a purchase than to
prove possession and one could presumably expect to see a lot more purchase
convictions in Florida caselaw. Yet, interestingly, the Cunningham decision
suggests that perhaps the opposite is true. That is, in the context of a transaction in
which the defendant is the recipient of the drugs, perhaps the State can more
readily prove possession than purchase if the latter requires both possession and
the exchange of money, while the offense of possession does not require the
exchange of money or that there be any transaction at all.
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Some Florida cases do involve a conviction for the attempted purchase of
illegal drugs. See, e.g., Foster v. State, 160 So. 3d 948, 950 (Fla. 5th DCA 2015);
Cardi v. State, 685 So. 2d 842, 843 (Fla. 2d DCA 1995). But those cases do not
discuss the elements of attempted purchase, which discussion might provide some
enlightenment as to the elements of a completed purchase offense. Specifically, if
a purchase conviction requires a completed transaction—that is, both payment and
receipt (or control over the disposition) of the drugs—then an attempted purchase
offense would presumably lack one or both of those components. On the other
hand, if a purchase conviction requires only an uncompleted transaction, then there
must be some other means by which Florida law differentiates a purchase from an
attempted purchase offense.
All these observations aside, though, we feel little confidence in the above
suppositions and require the assistance of the Florida Supreme Court to instruct us
as to the elements of “purchase” under the Florida drug trafficking statute.
Specifically, does the statute require a completed purchase; that is, a transaction in
which the purchaser would have actual or constructive possession of the substance
in question? If not, what are the elements of a conviction based on purchase?
2. Aiding and Abetting a Purchase Under the Florida Trafficking
Statute
The above discussion addresses the uncertainty concerning what acts the
putative purchaser of drugs must commit in order to be convicted of the
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substantive crime of trafficking drugs via a purchase. In support of his argument
that a purchase conviction does not require the defendant to have had actual or
constructive possession of the illegal drug, Conage cites a case that discusses the
aiding and abetting of illegal drug activity: Ras v. State, 610 So. 2d 24 (Fla. 2d
DCA 1992). The cited case does not address a purchase conviction, but Conage
notes that it contains language suggesting that one might be able to aid and abet a
drug purchase without having also aided and abetted possession of that drug. He
argues that this language must mean that a purchase conviction does not require the
defendant to actually or constructively possess the illegal substance at issue.
As to Florida law concerning aiding and abetting, Florida’s Principal in First
Degree statute provides in pertinent part:
Whoever commits any criminal offense against the state, whether
felony or misdemeanor, or aids, abets, counsels, hires, or otherwise
procures such offense to be committed, and such offense is committed
or is attempted to be committed, is a principal in the first degree and
may be charged, convicted, and punished as such, whether he or she is
or is not actually or constructively present at the commission of such
offense.
Florida Statutes § 777.011. In short, like its equivalent federal aiding and abetting
statute, codified at 18 U.S.C. § 2(a), the Florida statute punishes aiders and abettors
the same as principal offenders. Both statutes require that the aider and abettor
“have the intent to aid the commission of a crime and do some act that contributed
to the offense.” Boston v. United States, 939 F.3d 1266, 1271 (11th Cir. 2019).
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In Ras, the case relied on by Conage, the defendant was convicted of
trafficking over 28 grams of cocaine in violation of Florida Statutes
§ 893.135(1)(b)1. The evidence showed that defendant Ras and his cohort,
Raymond Frank, met with undercover detectives in the latter’s motel room. Frank
told the detectives that Ras wanted to purchase cocaine. Ras then negotiated the
price for the three ounces of cocaine. The detectives agreed, and set up a time to
meet again to deliver the cocaine to Ras and his associate. Ras returned at the
appointed hour, this time accompanied by a man named Griswold. Griswold had
the money and, after Ras gave Griswold a pocketknife to open the bag of cocaine,
Griswold took a sample of the cocaine, snorting and tasting it. Griswold then gave
the detective the money and picked up the package of cocaine. Immediately
thereafter, both Ras and Griswold were arrested. Ras, 610 So. 2d at 25.
The trial judge at Ras’s trial for trafficking determined that the evidence
supported only a trafficking by possession charge 15 and he so instructed the jury,
telling them that, to convict, they had to find that Ras either actually or
constructively possessed the cocaine. The jury convicted. On appeal, the Florida
Second District Court of Appeals reversed. It noted that, as Ras never physically
held the cocaine, he could be convicted of possession only if he had dominion or
15
In its indictment, the State had included all of the acts set out in § 893.135(1), except for
“purchase.” Ras, 810 So. 2d at 25.
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control over the cocaine; that is, if he constructively possessed the drugs. As to
that question, Ras had been present at both meetings with the detectives, negotiated
the price for the cocaine, and, after his arrest, had told the detectives that he and
Griswold were taking the cocaine to a buyer in Sarasota. The district court of
appeals did not find that the above evidence would have been insufficient, as a
factual matter, to prove that Ras had the ability to exercise dominion or control
over the cocaine just purchased from the undercover agents. Yet, because of its
interpretation of a unique Florida evidentiary rule—the corpus delicti rule16—the
appellate court ruled that the trial court should not have relied on Ras’s post-arrest
admission and that, without this admission, there was insufficient evidence to
establish Ras’s constructive possession. Id.
Accordingly, the appellate court reversed Ras’s conviction for trafficking by
possession to the extent that this conviction was based on Ras’s actual or
constructive possession, himself, of the cocaine. Nothing in its analysis of that
issue affects the question at issue in this case, which is what are the elements of
trafficking by purchase. The court then proceeded to consider whether the
evidence could support a possession conviction for Ras based on his aiding and
abetting Griswold’s possession of the cocaine. With no explanation other than a
16
For an explanation of this evidentiary rule followed in Florida, see Burks v. State, 613 So.
2d 441 (Fla. 1993).
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citation to cases holding that aiding and abetting the sale of drugs does not
necessarily mean that one has aided and abetted their possession, the appellate
court concluded that Ras’s conduct—his meeting with undercover agents to
purchase drugs, his negotiation of the price of the drugs, his subsequent meeting
with agents to actually make the purchase, and his assistance to Griswold at this
meeting—did not aid and abet Griswold in his ultimately successful possession of
the cocaine. Id. at 26.
As a ruling evaluating the validity of a possession conviction, the court’s
above discussion is not relevant to the precise question before us. However, it is
when the appellate court next opined about a charge on which Ras had not been
indicted and that was not before the court—whether Ras’s conduct could have
constituted the aiding and abetting of a purchase—that the court made the
statement on which Conage now seizes. The statement: that although Ras did not
aid and abet Griswold’s possession, he “likely” aided and abetted the latter’s
purchase of the cocaine. Id. From this dicta, Conage argues that the appellate
court was necessarily saying that one can be guilty of purchasing drugs without
also being guilty of possessing—constructively or actually—those drugs.
At first glance, that is not an unreasonable inference to draw from this dicta
in Ras. But the question before us is whether under Florida law, one can be found
guilty of purchasing illegal drugs without also being in at least constructive, if not
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actual, possession of the substance. And the dicta provided by the Second District
Court of Appeals in Ras does not provide a sufficient or responsive answer to that
question. 17 In the first place, there is contrary dicta from the Third District Court
of Appeals and the First District Court of Appeals, in, respectively, Sobrino and
Cunningham, discussed supra.
Moreover, in reaching its conclusion that Ras’s actions had not aided and
abetted his cohort Griswold in the latter’s possession of the purchased cocaine, Ras
is seemingly inconsistent with governing Florida principles concerning aiding and
abetting. The Florida Supreme Court has held that in order to be guilty as a
principal for a crime physically committed by another, one must intend that the
crime be committed and do some other act to assist the other person in actually
committing the crime. Staten v. State, 519 So. 2d 622, 624 (Fla. 1988); accord
Banks v. State, 790 So. 2d 1094, 1098 n.2 (Fla. 2001). The Florida pattern jury
instructions provide that a defendant who has helped another person commit or
attempt to commit a crime is treated as a principal “if (1) the defendant had a
conscious intent that the criminal act be done and (2) the defendant did some act or
said some word which was intended to and which did incite, cause, encourage,
17
As best we can determine, in the twenty-eight years since its issuance, Ras has never been
cited by a Florida appellate court for the proposition that Conage attributes to it.
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assist or advise the other person or persons to actually [commit] [attempt to
commit] the crime . . . .” Fla. Std. Jury Instr. (Crim) § 3.5 (a) (2019).
The appellate court in Ras concluded that Ras could not be convicted of
aiding and abetting Griswold’s possession of the cocaine in question, but that
conclusion does not seem to square with the Florida Supreme Court’s
pronouncements on aiding and abetting, as set out in the above caselaw and in the
pattern instructions. That is, Ras clearly performed acts that assisted his cohort
Griswold in coming into possession of cocaine: Ras attended the first meeting
with the undercover detectives, without Griswold, where he negotiated the price
for the drugs to be purchased; Ras arranged to meet again with the undercover
officers to purchase the cocaine; Ras attended that second meeting, this time with
Griswold; and he assisted Griswold in testing the cocaine, who then paid for and
received the cocaine. As to whether Ras had “a conscious intent that the criminal
act be done,” he clearly did. Meeting with the detectives, negotiating a price, and
meeting once again with them to purchase the cocaine made clear Ras’s intent. Cf.
State v. Dent, 322 So. 2d 543, 544 (Fla. 1975) (the defendant, who was a go-
between in the sale of drugs to an undercover agent, was properly convicted of
aiding and abetting the sale, even though he received no compensation from the
seller, because the defendant “took an active part in arranging the sale” and “the
sales would not have occurred but for [defendant’s] arrangements”).
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So then on what ground did the appellate court dismiss what seems to be a
natural conclusion that Ras had assisted Griswold in the latter’s coming into
possession of the cocaine? As noted, the appellate court cited three cases18 holding
that a defendant does not aid and abet possession of illegal drugs merely because
he has aided and abetted the sale of those drugs. Ras, 610 So. 2d at 26. Yet, each
of these cases dealt with a defendant who had been convicted of possession based
on the assistance he provided in selling illegal drugs. As the cases point out, when
one helps a seller get rid of his drugs, one is not helping the seller possess the drug;
instead, one is helping the seller dispose of the drug. For example, in Daudt, the
defendant helped the seller make his sale, but the defendant never himself
possessed the marijuana. Daudt v. State, 368 So. 2d 52 (Fla. 2d DCA 1979).
Hence, the appellate court there concluded that, while he was guilty of aiding and
abetting a sale, the defendant was not guilty of aiding and abetting the seller in
possessing the illegal drugs. As the court pointed out, “[The seller] already
possessed the marijuana; there is no showing that appellant was of any help to [the
seller] in either acquiring it or retaining possession of it. On the contrary, [the
defendant] aided [the seller] in Divesting himself of it.” Id. at 54. In contrast,
when a defendant helps a cohort come into possession of drugs, he has helped that
18
Stephenson v. State, 371 So. 2d 554 (Fla. 2d DCA 1979); Daudt v. State, 368 So. 2d 52
(Fla. 2d DCA 1979); and Kickasola v. State, 405 So. 2d 200 (Fla. 3d DCA 1981).
37
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cohort possess the drugs and, so long as the defendant has done so with the intent
to achieve that result, the Florida standard for proving aiding and abetting would
seemingly have been met.
Yet, regardless of whether Ras’s dicta correctly applies Florida law
concerning the standards for determining when a defendant has aided and abetted
possession, a careful parsing of Ras reveals that it really has nothing to do with the
fundamental question before us—whether a purchase conviction requires the
defendant to actually or constructively possess illegal drugs. Ras never analyzes
that issue. To do so, it would have had to determine whether Griswold, the
individual who paid for the drugs, would have also been required to come into
possession of the cocaine in order to be convicted of purchasing. Not surprisingly,
Ras never poses that question, and for good reason, as Griswold clearly did both:
he paid for the drugs and he possessed them. Thus, no matter how broadly or
narrowly one defines “purchase,” there was no question that Griswold’s conduct
would have met any definition of purchase. The Ras dicta dealt with a different
issue: whether a defendant who assists another person in obtaining drugs via a
purchase can ever be convicted of aiding and abetting that other person’s
possession of the drugs. Ras said “no” on the facts before it, even though the
assistance by Ras that helped Griswold make the purchase was the same assistance
that helped Griswold gain possession of the drugs. But whether right or wrong,
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that dicta does not tell us whether a purchase conviction can be sustained if the
purchaser has not actually come into possession of the drugs prior to his arrest. In
short, Ras provides analysis about aiding and abetting possession, not analysis
about the elements of a purchase offense.
Finally, that we have questioned whether the dicta in Ras represents the law
of Florida on the precise question before us should not suggest that we take a
position as to whether a purchase conviction under Florida law requires the
defendant to have actually or constructively possessed the drugs in question.
Obviously, that is a matter to be determined solely by the Florida Supreme Court,
whose guidance we will gratefully and respectfully accept.
III. QUESTIONS CERTIFIED TO THE FLORIDA SUPREME COURT
The certification procedure is “a valuable tool” that “helps save time,
energy, and resources and produces authoritative answers to novel or unsettled
questions of state law.” World Harvest Church, Inc. v. Guideone Mut. Ins. Co.,
586 F.3d 950, 960–61 (11th Cir. 2009) (internal quotation marks omitted).
Florida’s constitution expressly provides for certification to the Florida Supreme
Court of state law questions that are “determinative of the cause and for which
there is no controlling precedent of the supreme court of Florida.” Fla. Const. art.
V, § 3(b)(6). Consistent with that grant of authority, this Court has found
certification to the Florida Supreme Court warranted where an appeal “depends on
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resolution of questions of unsettled Florida law” that “will affect many other
cases.” Tobin v. Michigan Mut. Ins. Co., 398 F.3d 1267, 1274 (11th Cir. 2005)
(“Where there is doubt in the interpretation of state law, a federal court may certify
the question to the state supreme court to avoid making unnecessary Erie guesses
and to offer the state court the opportunity to interpret or change existing law.”).
For the reasons discussed above, this case falls into that category. Accordingly, we
certify to the Florida Supreme Court the following questions:
How does Florida law define the term “purchase” for purposes of
Florida Statutes § 893.135(1)? More specifically, does a completed
purchase for purposes of conviction under § 893.135(1) require some
form of possession—either actual or constructive—of the drug being
purchased?
Our statement of the certified questions is merely suggestive and is not
meant to limit the inquiry of the Florida Supreme Court. As this Court has
explained many times, “the particular phrasing used in the certified question[s] is
not to restrict the Supreme Court’s consideration of the problems involved and the
issues as the Supreme Court perceives them to be in its analysis of the record
certified in this case.” Miller v. Scottsdale Ins. Co., 410 F.3d 678, 682 (11th Cir.
2005) (quoting Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir. 1968)) 19
(internal quotation marks omitted). “This latitude extends to the Supreme Court’s
19
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
40
Case: 17-13975 Date Filed: 09/30/2020 Page: 41 of 41
restatement of the issue or issues and the manner in which the answers are given.”
Id. To assist the Florida Supreme Court in considering the case, the entire record,
along with copies of the briefs of the parties, is transmitted herewith.
QUESTIONS CERTIFIED.
41