[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13820 ELEVENTH CIRCUIT
APRIL 14, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-21159-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH DEVON ADAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 14, 2010)
Before EDMONDSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Keith Devon Adams appeals his conviction and sentence for possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Adams presents
five issues on appeal. First, he argues that the government did not present
sufficient evidence at trial to support his conviction under § 922(g)(1). Second,
Adams argues that his sentence at the top of the guideline range was in error
because the district judge failed to state adequate reasons for sentencing at the top
of the guideline range. Third, Adams contends that basing his designation as an
armed career criminal (“ACC”) on a prior Florida drug felony was error because
the Florida law was broader than the definition of “serious drug offense” in the
federal Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(A)(ii).
Fourth, Adams argues that basing his designation as an ACC on a prior conviction
for burglary was error because burglary should not be classified as a “violent
felony” for the purposes of the ACCA. Fifth, Adams argues that his designation as
an ACC was error because the prior convictions that established his qualification as
an ACC were not charged in the indictment, nor proven to a jury. We find no
merit to these arguments and affirm Adams’s conviction and sentence.
I.
On December 9, 2008, Adams was driving a car that was stopped by
Officers Vincent Stafford and Dante McKay of the Miami-Dade Police
Department. Upon approaching the car Officer Stafford was able to observe
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Adams passing an assault rifle to the passenger. At this point, Adams put the car in
drive and sped off. Officers Stafford and McKay chased Adams at high speed until
Adams’s car hit a median and stalled. Officer Stafford was able to see the assault
rifle, wrapped in a white towel, being dropped from the passenger side window.
Adams and the passengers1 fled on foot. The police were only able to apprehend
Adams.
During the high speed chase Officer Stafford was communicating with
police dispatch; however, he did not mention the presence of an assault rifle. An
independent witness by the name of Robens Stingley testified that he witnessed an
object, which he later discovered to be a gun and bullets, being thrown from
Adams’ car. Officer McKay testified that he did not see the assault rifle when they
first stopped Adams, but that he did see Adams concealing a long black object
along the side of his body. Officer McKay also testified that during the chase
Officer Stafford informed him that Adams had a gun. The government’s forensic
biology expert, Julie Wan Wong, testified that several DNA profiles were
recovered from the rifle, but Adams’s DNA was not one of them. However, Wong
testified that this did not mean that Adams did not touch the rifle and that the fact
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Although the officers only observed Adams and a front seat passenger in the car, the
front passenger seat was later found pushed forward; thus, there may have been a back seat
passenger who pushed the seat forward to flee the car.
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that the rifle was wrapped in a towel could have frustrated the DNA analysis.
Finally, Teddy Harley, a fingerprint expert, testified that he could not recover any
fingerprints of any value from the rifle or the ammunition. Harley further testified
that recovering usable fingerprints from firearms is difficult due to their surface
and the fact that the assault rifle was wrapped in a towel.
Adams was convicted by a jury of being a felon in possession of a firearm.
At sentencing, the district court found that Adams was previously convicted of: (1)
robbery/carjacking in 2001; (2) burglary of a dwelling in 2005; and (3) possession
of cocaine with intent to sell or deliver in 2008. These convictions qualified
Adams for classification as an ACC and thus he was subject to a mandatory
minimum of fifteen years under 18 U.S.C. § 924(e)(1). The district judge
sentenced Adams to 288 months’ imprisonment.
II.
A. The Evidence Was Sufficient to Support Adams’s Conviction Under 18
U.S.C. § 922(g)(1)
We review the sufficiency of the evidence de novo. United States v.
Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009) (citation omitted). We
consider the evidence “in the light most favorable to the jury verdict, and draw all
reasonable inferences and credibility determinations in favor of the Government.”
United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir. 2008) (citation omitted).
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“[I]t is not necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt.” United States v. Merrill, 513 F.3d 1293, 1299 (11th
Cir. 2008) (quotation omitted).
To obtain a conviction for being a felon in possession of a firearm, the
prosecution must prove beyond a reasonable doubt that: (1) the defendant was in
knowing possession of a firearm; (2) the defendant was a convicted felon; and (3)
the firearm was in or affected interstate commerce. 18 U.S.C. § 922(g)(1); United
States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008) (per curiam) (citation
omitted), cert. denied, 129 S. Ct. 215 (2008). Adams argues that the evidence
presented at trial was not sufficient to prove that he was in possession of the assault
rifle. Adams bases this assertion on three arguments: (1) that Officer Stafford did
not see Adams pass a rifle to a passenger in his car because Officer Stafford did not
mention this fact when he requested backup; (2) that there were one or two other
individuals in the car who could have possessed the rifle; and (3) that there was a
lack of fingerprint and DNA evidence.
The facts presented at trial were sufficient to show that Adams had actual
possession of the rifle. Officer Stafford testified that he observed Adams passing
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the rifle to the passenger, Officer Mckay saw Adams hiding a long black object
along his right side, and both officers and Mr. Stingley testified to seeing the rifle
tossed from the car. Nevertheless, actual possession is not necessary to fulfill the
possession requirement of § 922(g)(1). It is enough that the evidence show that
Adams had constructive possession. United States v. Wright, 392 F.3d 1269, 1273
(11th Cir. 2004) (finding sufficient evidence of possession for § 922(g)(1) when
firearm was found under the defendant’s car seat next to a cold beer). We find that
based on the evidence presented a reasonable jury could find that Adams was
either in actual or constructive possession of the assault rifle.
B. The District Judge Adequately Considered the 18 U.S.C. § 3553(c)(1)
Factors When Determining Adams’ Sentence
Adams argues that the district court erred by sentencing him near the top of
the guideline range without giving reasons for the sentence, in violation of 18
U.S.C. § 3553(c)(1). In particular, Adams claims that the court failed to explain its
rationale for sentencing him to 288 months’ imprisonment. Adams argues that his
conduct did not merit such a sentence. Finally, Adams contends that even though
the court did explicitly consider his criminal history and the need to protect the
public, he asserts that these factors were already taken into account in his guideline
calculation, and that a sentence at the low end of the applicable guideline range
would have sufficiently accounted for these factors.
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We review de novo whether a district court complied with § 3553(c)(1),
even if the defendant did not object below. United States v. Bonilla, 463 F.3d
1176, 1181 (11th Cir. 2006). When a district court sentences a defendant within
the advisory guidelines range and the range exceeds 24 months, “[t]he court, at the
time of sentencing, shall state in open court the reasons for its imposition of the
particular sentence . . . [including] the reason for imposing a sentence at a
particular point within the range.” 18 U.S.C. § 3553(c)(1). The Supreme Court
has stated that § 3553(c) does not require “a full opinion in every case,” noting that
the requirements change with the circumstances of each case. Rita v. United
States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007). In Rita, the Supreme
Court held that the sentencing court complied with § 3553(c)(1) where the judge
noted the sentencing guidelines range and the § 3553(a) factors in general. 551
U.S. at 345, 358–59, 127 S. Ct. at 2462, 2469.
In the present case, the district judge: (1) considered Adams’ prior
convictions; (2) heard and considered argument on all of Adams’ objections to the
Pre-Sentence Investigation Report; (3) and correctly calculated and considered the
guidelines. Upon imposing a sentence within the guidelines, the district judge
stated, “The Court has considered the statements of all the parties, the Presentence
Report which contains the advisory Guidelines, and the statutory factors.” D.E.
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113 at 12. The district judge provided an explanation for a sentence at the higher
end of the guideline by saying, “Based on the need to deter future criminal
behavior and the need to protect the public the Court will impose a sentence within
the guideline range.” Id. The district court’s statements at sentencing complied
with § 3553(c)(1). Accordingly, we affirm as to this issue.
C. Adams’s Prior Convictions Were Properly Counted Under the Armed
Career Criminal Act
The ACCA requires a minimum sentence of 15 years’ imprisonment for a
defendant who violates § 922(g) and has three previous convictions for a “violent
felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). Adams contends that he
should not have been sentenced as an ACC because he did not have the requisite
three felonies required under the ACCA, 18 U.S.C. § 924(e)(1). Adams puts forth
two arguments in support of this contention: (1) that the Florida drug law under
which he was convicted criminalized conduct that does not qualify as a “serious
drug offense” under the ACCA; and (2) that his conviction for burglary of an
unoccupied dwelling is not a “violent felony” under the ACCA.
“We review de novo whether a conviction is a ‘violent felony’ or a ‘serious
drug offense’ within the meaning of § 924(e).” United States v. James, 430 F.3d
1150, 1153 (11th Cir. 2005) (citation omitted), aff’d, 550 U.S. 192, 127 S. Ct. 1586
(2007). In determining whether a prior conviction is a qualifying offense under the
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ACCA, we apply a “categorical approach, looking only to the statutory definition
of the crime charged, rather than the actual facts of the individual’s prior
conviction.” Id.
1. Adams’s Prior Florida Drug Offense is a Qualifying Offense for the
Purposes of the ACCA
The ACCA defines a “serious drug offense” to include “an offense under
State law, involving manufacturing, distributing, or possessing with intent to
manufacture or 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). Adams was convicted in 2008 under Fla. Stat. § 893.13(1)(a),
which made it “unlawful for any person to . . . possess with the intent to sell,
manufacture, or deliver, a controlled substance.” According to § 893.13(1)(a)1,
when the controlled substance involved is named or described in Fla. Stat.
§ 893.03(2)(a), the defendant commits a second-degree felony. Adams was
convicted of possession with intent to sell, manufacture, or deliver cocaine and
cocaine is listed as one of the proscribed controlled substances. Fla. Stat.
§ 893.03(2)(a)4. At the time of Adams’s conviction, second-degree felonies in
Florida were punishable by a maximum term of imprisonment of 15 years. Fla.
Stat. § 775.082(3)(c).
Adams notes that § 924(e)(2)(A)(ii) does not mention “possession with the
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intent to sell,” while the Florida statute of conviction does. To support his
argument, Adams cites the Fifth Circuit’s holding in United States v. Gonzales for
the proposition that where a state statute includes the term “to sell,” but the federal
sentencing definition does not, a defendant’s sentence cannot be enhanced because
the state statute is broader and covers conduct not covered by the federal statute.
484 F.3d 712, 714–16 (5th Cir. 2007) (per curiam).
In order to constitute a “serious drug offense,” the language of the state
statute of conviction “need not exactly match the ACCA’s definition of a ‘serious
drug offense.’” James, 430 F.3d at 1155. Instead, the relevant inquiry is whether
the state statute of conviction “falls within the ACCA’s definition of a ‘serious
drug offense.’” Id. We have stated that because the ACCA’s definition of a
“serious drug offense” uses the broad term “involving,” a “‘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. Consequently, even where the intent to manufacture or distribute
was not an element of the underlying state drug-trafficking conviction, we held that
the conviction was still a “serious drug offense” because the intent to distribute
could be inferred. Id. at 1155–56 (basing such inference on defendant’s
possession of between 200 and 400 grams of cocaine).
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Further, Gonzales does not deal with the ACCA. 484 F.3d at 714. If Adams
is going to rely on Fifth Circuit precedent, United States v. Vickers is more relevant
because it finds a Texas statute, similar to the Florida statute at issue here, to be
included within the ACCA’s predicate offenses. 540 F.3d 356, 365 (5th Cir. 2008)
cert. denied 129 S. Ct. 771 (2008) (finding that the “word ‘involving’ is an
exceedingly broad term for a statute” and thus a “Texas conviction for offering to
sell a controlled substance is one ‘involving’ distribution of a controlled substance
under the ACCA”).
We find that Adams’s Florida conviction under § 893.13(1)(a)1 is
adequately related to § 924(e)(2)(A)(ii) such that it should be considered a serious
drug felony. Adams’s Florida conviction subjected him to a potential of 15 years
of imprisonment. Further, the terms “selling” and “delivering” in § 893.13(1)(a)1
are reasonably related to “involving . . . distributing” in § 924(e)(2)(A)(ii). See
James, 430 F.3d at 1155. The district court did not err in using Adams’s Florida
drug conviction as a predicate under the ACCA. Accordingly, we affirm as to this
issue.
2. Adams’ Burglary Conviction is a Violent Felony for the Purposes of
the ACCA
The ACCA defines a “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year” that:
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(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another
18 U.S.C. § 924(e)(2)(B).
In Taylor v. United States, the Supreme Court held that “an offense constitute[d]
‘burglary’ for purposes of a § 924(e) sentence enhancement if either its statutory
definition substantially correspond[ed] to ‘generic’ burglary, or the charging paper
and jury instructions actually required the jury to find all the elements of generic
burglary in order to convict the defendant.” 495 U.S. 575, 602, 110 S. Ct. 2143,
2160 (1990). The Supreme Court defined “generic burglary” as “an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to
commit a crime.” Id. at 598, 110 S. Ct. at 2158.
Florida defined “burglary” at the time of Adams’s conviction in 2005 as
“[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an
offense therein, unless the premises are at the time open to the public or the
defendant is licensed or invited to enter or remain.” Fla. Stat. § 810.02(1)(b)1
(2003). Under Florida law, where the defendant was not armed, but entered or
remained in an unoccupied dwelling, the burglary constituted a second-degree
felony and subjected the defendant to a maximum punishment of 15 years’
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imprisonment. Fla. Stat. §§ 810.02(3)(b) (2003); 775.082(3)(c) (2002).
Adams acknowledges that the ACCA specifically identifies “burglary” as a
violent felony. Nevertheless, Adams states that he is making the argument for
appellate preservation purposes in light of the Supreme Court’s decisions in
Chambers v. United States, 129 S. Ct. 687 (2009), and Begay v. United States, 553
U.S. 137, 128 S. Ct. 1581 (2008). Adams’s Florida burglary conviction qualifies
as a “generic burglary,” and thus is a qualifying “violent felony” under the ACCA.
The district court properly classified Adams as an ACC based on the predicate
burglary and drug offenses. Accordingly, we affirm as to this issue.
E. Adams’s Prior Convictions Do Not Need to be Proven to a Jury for Him to
be Classified as an ACC
Adams argues that he should not have been designated an ACC because the
facts of his prior convictions were not found by the jury or charged in the
indictment. We review constitutional sentencing issues de novo. United States v.
Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). Adams concedes that his
argument is contrary to the Supreme Court’s holding in Almendarez-Torres v.
United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1233 (1998), but raises the issue
to preserve it for appeal. We find that Adams was properly classified as an ACC
and the Supreme Court’s holding in Almendarez-Torres forecloses any argument to
the contrary. Accordingly, we affirm.
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III.
We find that there was sufficient evidence for a reasonable jury to find
Adams guilty of violating § 922(g)(1). The district court judge adequately
weighed and considered factors when sentencing Adams to a term of imprisonment
within the guideline. Further, Adams was properly classified as an ACC. We
affirm the conviction and sentence.
AFFIRMED.
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