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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12461
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-14078-KAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK AUGUSTUS CHAPPELLE,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 25, 2018)
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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Mark Chappelle appeals his convictions and 264-month sentence for
possession of heroin and cocaine with intent to distribute, carrying a firearm in
relation to a drug trafficking crime, and possession of a firearm by a convicted
felon. First, Chappelle argues that the district court erred in admitting evidence at
trial relating to a THC-infused1 lollipop found in his vehicle. Second, he argues
that the district court erred in enhancing his sentence pursuant to the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e) and in deeming him as a career
offender. After careful consideration of the briefs and the record, and for the
reasons below, we affirm Chappelle’s convictions and sentence in all respects.
I. BACKGROUND
Chappelle came to the attention of law enforcement when a confidential
informant reported that Chappelle was selling drugs. During a phone conversation
recorded by law enforcement, the confidential informant arranged to meet with
Chappelle in a Walgreens parking lot. On this call, the informant and Chappelle
did not explicitly discuss the type of drugs, quantity of drugs, or price the
informant would pay. Law enforcement gave the confidential informant $200 in
marked bills and monitored the meeting. They observed the confidential informant
1
“THC” stands for tetrahydrocannabinol, which is the primary intoxicant in marijuana.
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approach Chappelle’s vehicle and then return to the law enforcement vehicle with
only $80, as well as crack and heroin. Chappelle was arrested. A search of his
vehicle revealed a gun, additional crack cocaine, cash, heroin, and a THC-infused
lollipop.
Chappelle was indicted for possession of heroin and cocaine with the intent
to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count I), carrying
a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (Count II), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count III). Chapelle pled not
guilty, and the case proceeded to trial.
Prior to trial, the government notified Chappelle that it intended to tender
into evidence the THC-infused lollipop that officers had seized from Chappelle’s
vehicle in the post-arrest search of the vehicle, as well as a recorded post-arrest
interview in which Chappelle told officers that the lollipop could intoxicate a
person and that he could buy such a lollipop for $5 and resell it for $20. Chappelle
objected to the admission of evidence related to the THC lollipop, arguing that the
evidence was inadmissible under Federal Rule of Evidence 403. He asserted that
because he was on trial only for a single instance of allegedly possessing heroin
and cocaine with the intent to distribute, the THC-infused lollipop had little
probative value with respect to the offense charged. The government responded
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that the lollipop was admissible under Federal Rule of Evidence 404(b) because it
was probative of Chappelle’s intent and knowledge that he sold drugs out of his
vehicle. The district court overruled Chappelle’s objection, reasoning that his
intent to distribute controlled substances was at issue in the case.
At trial, the government presented evidence showing that the confidential
informant purchased cocaine and heroin from Chappelle. The government also
presented evidence about the THC lollipop that was found in Chappelle’s car and
Chappelle’s statement about reselling the lollipop. After the evidence was
introduced, the district court gave a limiting instruction, telling the jury that it
could consider this evidence only in deciding whether Chappelle had the state of
mind necessary to commit the crimes charged, not for purposes of deciding
whether Chappelle committed the acts charged in the indictment. The jury found
Chappelle guilty on all three counts.
Before Chappelle’s sentencing, the probation office prepared a presentence
investigation report (“PSR”). The PSR indicated that Chappelle was subject to
sentencing enhancements as an armed career criminal under ACCA, 18 U.S.C.
§ 924(e), and as a career offender under the United States Sentencing Guidelines
§ 4B1.1(a). The PSR identified the following predicate offenses: (1) aggravated
assault with a firearm on a police officer, aggravated assault with a firearm, and
shooting into an occupied vehicle; (2) sale of cocaine; and (3) aggravated assault
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with a deadly weapon. The PSR noted that Chappelle’s offense level under ACCA
was the same under the career offender provisions in § 4B1.1. As a result of these
enhancements, Chappelle’s guideline range was 360 months’ to life imprisonment.
Chappelle objected to the PSR’s application of the career offender and
armed career criminal enhancements. He argued that his convictions did not
qualify as predicate offenses under ACCA or career offender provision in § 4B1.1.
The government responded that precedent foreclosed Chappelle’s objection, and
the district court agreed. The district court sentenced Chappelle to a below-
guidelines, 264-month total sentence consisting of (1) a 204-month concurrent
sentence of imprisonment on Counts I and III and (2) a consecutive, 60-month
term of imprisonment on Count II, followed by five years’ supervised release.
II. STANDARD OF REVIEW
We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Lampley, 68 F.3d 1296, 1299 (11th Cir. 1995). This Court
reviews de novo whether a prior conviction qualifies as an ACCA predicate.
United States v. Esprit, 841 F.3d 1235, 1238 (11th Cir. 2016). Additionally, we
review de novo a district court’s decision to classify a defendant as a career
offender under § 4B1.1(a). United States v. Whitson, 597 F.3d 1218, 1220 (11th
Cir. 2014).
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III. DISCUSSION
A. The District Court Did Not Abuse Its Discretion in Admitting Evidence
Related to the THC Lollipop.
Chappelle argues that the district court erred in admitting evidence relating
to the THC lollipop that officers found in his vehicle after his arrest. Specifically,
he contends that the district court should have excluded evidence about the lollipop
under Federal Rule of Evidence 404(b) because the government offered the
evidence only to show his criminal disposition.
Federal Rule of Evidence 404(b) forbids the admission of evidence of
another crime, wrong, or act to prove a person’s character and show that he acted
in conformity with that character. Fed. R. Evid. 404(b). Such evidence may,
however, be admissible for other purposes, such as proving intent or knowledge.
Id. For evidence to be admissible under Rule 404(b),
(1) it must be relevant to an issue other than defendant’s character;
(2) there must be sufficient proof to enable a jury to find by a
preponderance of the evidence that the defendant committed the act(s)
in question; and (3) the probative value of the evidence cannot be
substantially outweighed by undue prjejudice, and the evidence must
satisfy Rule 403.
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). In evaluating the
third prong, we review the evidence in the light most favorable to its admission.
Id. at 1344 n.8. The determination of whether the probative value of the evidence
is substantially outweighed by unfair prejudice lies within the sound discretion of
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the district court and requires an assessment of all the circumstances surrounding
the extrinsic evidence, including prosecutorial need, the similarity between the
extrinsic act and the charged offense, and temporal remoteness. United States v.
Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003). A limiting instruction to the jury
“can diminish any unfair prejudice caused by the evidence’s admission.” United
States v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011).
Chappelle contends that the district court abused its discretion in admitting
evidence about the THC lollipop because the probative value of this evidence was
substantially outweighed by the danger of unfair prejudice. We disagree.
Evidence relating to the THC lollipop satisfies the requirements for
admissibility under Rule 404(b). First, Chappelle’s intent to distribute was a
relevant issue in the case. Entering a not guilty plea “makes intent a material
issue.” Edouard, 485 F.3d at 1345 (internal quotation marks omitted). Chappelle
entered a not guilty plea and made no stipulations to remove intent as a material
issue in the case. Moreover, the district court was not unreasonable in concluding
that Chappelle’s recorded conversation—in which he stated that he could buy the
THC lollipop for $5 and resell it for $20—was relevant in establishing his intent to
sell narcotics.
Second, sufficient evidence existed for a reasonable jury to find that
Chappelle possessed the lollipop and that it contained THC. The government
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submitted the lollipop itself, testimony regarding the lollipop, and a recording of
Chappelle acknowledging his possession of it.
Third, the risk of unfair prejudice from the admission of the evidence about
the lollipop did not substantially outweigh the evidence’s probative value. As
discussed above, the evidence carried some probative value: Chappelle’s recorded
conversation regarding the THC lollipop’s potential sale and profitability was
relevant to establish his intent to sell drugs. Furthermore, the fact that Chappelle
possessed and intended to sell the THC lollipop at the same time that he sold the
cocaine and heroin favored admissibility. See Jernigan, 341 F.3d at 1282 (finding
that the Rule 403 calculus favored admissibility of past convictions where close
time span between the past convictions and the charged conduct were “well within
the temporal bounds of relevance”). We acknowledge that this evidence was
somewhat prejudicial. But the district court mitigated such risk by twice giving the
jury limiting instructions as to the proper use of the evidence. Therefore, the
district court did not abuse its discretion in allowing the admission of the evidence
under Rule 404(b) as evidence of intent to sell narcotics. 2
2
The government also argues in the alternative that (1) possessing the THC lollipop was
inextricably intertwined with the charged conduct and (2) any evidentiary errors were harmless.
Because we find admissibility properly supported under Rule 404(b), we need not examine the
government’s alternative arguments.
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B. The District Court Did Not Err in Sentencing Chappelle as an Armed
Career Criminal and Career Offender.
Chappelle argues that the district court erred in sentencing him as an armed
career criminal under ACCA and as a career offender under § 4B1.1(a).
Specifically, he argues that his prior convictions for aggravated assault under
Florida law do not qualify as violent felonies under ACCA or crimes of violence
under § 4B1.1(a).
Our precedent forecloses Chappelle’s arguments. In Turner v. Warden,
Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), we held that a Florida
conviction of aggravated assault under Fla. Stat. § 784.021 categorically qualifies
as a violent felony. Because the terms “violent felony” under ACCA and “crime of
violence” under § 4B1.2(a) are “virtually identical,” our decision in Turner also
dictates that a Florida aggravated assault conviction qualifies as a crime of
violence under the Sentencing Guidelines. See United States v. Alexander, 609
F.3d 1250, 1253 (11th Cir. 2010) (internal quotation marks omitted).
Although Chappelle is correct that Turner’s continued validity has been
questioned in light of intervening Supreme Court decisions, our prior precedent
rule binds us to follow Turner. See United States v. Golden, 854 F.3d 1256, 1256-
57 (11th Cir. 2017) (“But even if Turner is flawed, that does not give us, as a later
panel, the authority to disregard it.”). Recent cases have affirmed Turner’s
continued validity. See, e.g., United States v. Deshazior, 882 F.3d 1352, 1355
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(11th Cir. 2018). Accordingly, the district court did not err in classifying
Chappelle as an armed career criminal under ACCA or a career offender under
§ 4B1.1(a).
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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