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[DO NOT PUBLISH]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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