United States v. Devon McKenzie

Case: 16-15936 Date Filed: 06/09/2017 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-15936
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20141-KMW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVON MCKENZIE,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(June 9, 2017)

Before HULL, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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Defendant Davon McKenzie appeals his 180-month sentence, imposed after

pleading guilty to being a felon in possession of a firearm and ammunition. On

appeal, Defendant argues that the district court erred by applying the enhancement

under the Armed Career Criminal Act (“ACCA”) because his three Florida

convictions for possession with intent to sell, manufacture, or deliver cocaine were

not qualifying serious drug offenses and his Florida conviction for aggravated

battery did not constitute a violent felony. After careful review, we affirm.

I. BACKGROUND

According to the Presentence Investigation Report (“PSR”), in January

2016, officers responded to Dolphin Food Market after receiving calls that an

individual, later identified as Defendant, had approached a customer with a gun

and demanded that the customer give Defendant two gold necklaces. The

encounter led to the customer being shot in the leg. Defendant then fled with the

two gold necklaces and $700. He dropped the gun before exiting the market.

Officers recovered the firearm and determined that it had traveled in interstate

commerce.

A federal grand jury subsequently issued an indictment charging Defendant

with being a felon in possession of a firearm and ammunition, in violation of 18

U.S.C. §§ 922(g)(1) & 924(e)(1). Defendant later pled guilty pursuant to a written

plea agreement.

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In preparation for sentencing, the probation officer prepared the PSR. The

probation officer assigned Defendant a base offense level of 24 pursuant to

U.S.S.G. § 2K2.1(a)(2). Defendant also received a two-level enhancement under

§ 2K2.1(b)(4) because the firearm was stolen and a four-level enhancement

pursuant to § 2K2.1(b)(6)(B) because he possessed the firearm in connection with

another felony offense. The probation officer further determined that Defendant

was an armed career criminal under U.S.S.G. § 4B1.4(a), resulting in an offense

level of 34. The ACCA enhancement was based on the following prior convictions

in Florida: a conviction for armed robbery with a deadly weapon in 2006; three

convictions for possession with intent to sell, manufacture, or deliver cocaine in

2009; and a conviction for aggravated battery in 2013. With a three-level

reduction for acceptance of responsibility, Defendant’s total offense level was 31.

Based on a total offense level of 31 and a criminal history category of VI,

Defendant’s guideline range was 188 to 235 months’ imprisonment.

Of relevance to this appeal, Defendant objected to the ACCA enhancement

on the ground that his prior convictions for armed robbery, aggravated battery, and

possession with intent to sell, manufacture, or deliver cocaine were not qualifying

predicate offenses.

At sentencing, Defendant reiterated his objection to the ACCA

enhancement. Defendant acknowledged that binding precedent foreclosed his

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argument related to the drug convictions, but argued that his convictions for

aggravated battery and armed robbery did not qualify as violent felonies because

they required only the de minimus use of force. The district court ultimately

determined that the PSR’s application of the ACCA enhancement was appropriate

because Defendant’s three prior drug convictions qualified as serious drug

offenses. The district court noted, however, that even if one of the drug offenses

were “deemed infirm,” the application of the ACCA enhancement was still

appropriate because Defendant’s aggravated battery conviction was a qualifying

violent felony. 1 After considering the 18 U.S.C. § 3553(a) factors, the district

court sentenced Defendant to 180 months’ imprisonment. This appeal followed.

II. DISCUSSION

We review de novo whether a prior state conviction is a qualifying predicate

offense under the ACCA. See United States v. Esprit, 841 F.3d 1235, 1238 (11th

Cir. 2016) (violent felony); United States v. White, 837 F.3d 1225, 1228 (11th Cir.

2016) (serious drug offense). Under the ACCA, a defendant convicted of violating

§ 922(g) is subject to a 15-year mandatory minimum if he has three prior

convictions for either a violent felony or a serious drug offense. 18 U.S.C.

§§ 922(g), 924(e)(1).

1
The district court did not rely on the armed robbery conviction.
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Here, the district court did not err by concluding that Defendant was an

armed career criminal. The district court determined that Defendant’s three prior

convictions in Florida for possession with intent to sell, manufacture, or deliver

cocaine qualified as serious drug offenses under the ACCA. Defendant’s prior

drug offenses constitute serious drug offenses under binding precedent. See United

States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014) (holding that a conviction

under Florida Statute § 893.13(1) for possession with intent to sell, manufacture, or

deliver a controlled substance constitutes a serious drug offense under the ACCA).

We are not persuaded by Defendant’s argument that his prior drug convictions

cannot be predicate offenses because the Florida statute does not have a mens rea

requirement, as we explicitly rejected this argument in Smith. See id. Under the

prior precedent rule, we are bound by the holding in Smith “unless and until it is

overruled by this court en banc or by the Supreme Court.” United States v. Vega-

Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quotations omitted).

Although Defendant’s three prior drug convictions are sufficient to support

the ACCA enhancement, we also conclude that the district court correctly

determined that Defendant’s Florida conviction for aggravated battery qualifies as

a violent felony under the ACCA. See Turner v. Warden Coleman FCI (Medium),

709 F.3d 1328, 1341–42 (11th Cir. 2013), abrogated on other grounds by Johnson

v. United States, 135 S. Ct. 2551 (2015). Because Defendant has at least three

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prior convictions that qualify as predicate offenses under the ACCA, the district

court did not err by applying the ACCA enhancement.

AFFIRMED.

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