USCA11 Case: 23-10857 Document: 30-1 Date Filed: 03/01/2024 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10857
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN KELLY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00204-CEH-SPF-2
____________________
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2 Opinion of the Court 23-10857
Before WILSON, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Justin Kelly appeals his convictions for possession with in-
tent to distribute 40 grams or more of fentanyl (Count 1), distribu-
tion and possession with intent to distribute a mixture and sub-
stance containing fentanyl resulting in death (Count 2), and posses-
sion of a firearm and ammunition by a convicted felon (Count 8),
as well as his sentence of life imprisonment. Kelly argues that the
court erred when it denied his motion for judgment for acquittal
for counts one and two because there was not sufficient evidence
that he supplied the fentanyl that killed the victim or that the fen-
tanyl was the “but for” cause of the victim’s death. He argues that
the court erred in denying his motion for judgment of acquittal for
count eight because there was not sufficient evidence that he con-
structively possessed the firearm found in the storage unit. Addi-
tionally, he argues that the court erred when it found that his prior
Florida cocaine-based drug convictions were serious drug offenses,
and therefore, erred in applying an enhancement under the Armed
Career Criminal Act (“ACCA”).
I.
We review de novo whether there was sufficient evidence to
support a conviction. United States v. Jiminez, 564 F.3d 1280, 1284
(11th Cir. 2009). In reviewing the sufficiency of the evidence, we
view the record in the light most favorable to the government, re-
solving all reasonable inferences in favor of the verdict. Id. The
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23-10857 Opinion of the Court 3
evidence will be sufficient to support a conviction if “a reasonable
trier of fact could find that the evidence established guilt beyond a
reasonable doubt.” Id. at 1284-85 (quotation marks omitted).
The test for sufficiency is the same, regardless of whether
the evidence is direct or circumstantial, but where the government
relied on circumstantial evidence, reasonable inferences must sup-
port the conviction. United States v. Martin, 803 F.3d 581, 587 (11th
Cir. 2015). We will assume that the jury resolved all questions of
credibility in a manner supporting the verdict. Jiminez, 564 F.3d at
1285. The evidence need not exclude every reasonable hypothesis
of innocence for a reasonable jury to find guilt beyond a reasonable
doubt. United States v. Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir.
1985) (en banc). Instead, the jury is free to choose among alterna-
tive, reasonable interpretations of the evidence. Id.
The Supreme Court has held that, “where use of the drug
distributed by the defendant is not an independently sufficient
cause of the victim’s death or serious bodily injury, a defendant can-
not be liable under the penalty enhancement provision of 21 U.S.C.
§ 841(b)(1)(C) unless such use is a but-for cause of the death or in-
jury.” Burrage v. United States, 571 U.S. 204, 218-19 (2014).
“It is well settled that possession of contraband may be con-
structive as well as actual and may be proven by circumstantial ev-
idence.” United States v. Kincade, 714 F.2d 1064, 1066 (11th Cir.
1983). To prove actual possession, the government must prove that
the defendant had either physical possession of or personal domin-
ion over the thing allegedly possessed. United States v. Derose, 74
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4 Opinion of the Court 23-10857
F.3d 1177, 1185 (11th Cir. 1996). “Constructive possession exists
when a defendant has ownership, dominion, or control over an ob-
ject itself or dominion or control over the premises . . . in which
the object is concealed.” United States v. Leonard, 138 F.3d 906, 909
(11th Cir. 1998).
Here, there was sufficient evidence to convict Kelly of
counts 1, 2, and 8. First, there was sufficient evidence that Kelly’s
fentanyl was the fentanyl that killed E.L. Kinney testified that Kelly
was his only supplier of fentanyl, and that Kinney was E.L.’s only
supplier of fentanyl. Kinney testified that E.L. purchased fentanyl
from him on the night of his death, and later that night E.L. died
from an overdose. Therefore, there were reasonable inferences
that the jury could make that the fentanyl that killed E.L. was sup-
plied by Kelly. Martin, 803 F.3d at 587.
Second, there was sufficient evidence that the fentanyl sup-
plied by Kelly was the but-for cause of E.L.’s death. There was ev-
idence that E.L. was found with ooze coming out of his mouth
which was consistent with a fentanyl overdose. Dr. Ignacio, a med-
ical examiner who had done thousands of autopsies, testified that
she determined that E.L. died from fentanyl toxicity. There was
also evidence that E.L. had 2.5 nanograms of fentanyl in his body
at the time of his death, which was enough fentanyl to kill some-
one. Dr. Nelson, the chief medical examiner, also agreed with Dr.
Ignacio’s determination that E.L. died from a fentanyl overdose.
While Kelly argues that there is evidence that alcohol played a role
in E.L.’s death, the jury did not need to find that argument
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23-10857 Opinion of the Court 5
compelling because of Dr. Ignacio and Dr. Nelson’s testimony that
E.L. died from fentanyl toxicity. Cruz-Valdez, 773 F.2d at 1545.
Therefore, there was sufficient evidence for the jury to conclude
that the fentanyl supplied by Kelly was the but-for cause of E.L.’s
death.
Third, there was sufficient evidence that Kelly possessed the
firearm found in the storage unit. The storage unit that the firearm
was found in was in Kelly’s name. Detective Collins testified that
the keys that the police used to open the storage unit were obtained
from Kelly on the night of his arrest. Mary Herron, manager of
the storage facility, testified that in order to obtain a storage unit
the person must give their name and driver’s license and that she
would give that person a unique code to access the facility. There
was evidence that Kelly signed the storage rental agreement for the
unit that the firearm was found in. Therefore, there was evidence
that the jury could have used to conclude that Kelly had dominion
and control over the unit where the firearm was found, and thus,
that he had constructive possession of the firearm. Leonard, 138
F.3d at 909.
Therefore, there was sufficient evidence to convict Kelly of
counts 1, 2, and 8 and the district court did not err when it denied
the motion for acquittal.
II.
We review whether a prior state conviction qualifies as a se-
rious drug offense under the ACCA de novo. United States v. Smith,
983 F.3d 1213, 1222-23 (11th Cir. 2020). We apply the categorical
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6 Opinion of the Court 23-10857
approach to determine whether a defendant’s prior state convic-
tion qualifies as a serious drug offense under the ACCA. United
States v. Jackson (Jackson II), 55 F.4th 846, 850 (11th Cir. 2022), petition
for cert. granted, 143 S. Ct. 2457 (2023). Under the categorical ap-
proach, we consider the statutory definition of the state offense ra-
ther than the facts of the crime itself. Id. A state conviction quali-
fies only if the state statute under which the conviction occurred
defines the offense in the same way as, or more narrowly than, the
ACCA’s definition of a serious drug offense. Id.
Florida’s controlled substances schedules included ioflupane
until 2017. See 2017 Fla. Sess. Law Serv. Ch. 2017-110 (C.S.H.B. 505)
(West). The federal controlled substance schedules also included
ioflupane until 2015. See Schedules of Controlled Substances: Removal
of Ioflupane From Schedule II of the Controlled Substances Act, 80 Fed.
Reg. 54715-01 (Sep. 11, 2015).
In Jackson I, we vacated and remanded a defendant’s
ACCA-enhanced sentence, holding that the appellant’s cocaine-re-
lated Fla. Stat. § 893.13 offenses did not qualify as serious drug of-
fenses under the ACCA. United States v. Jackson (Jackson I), 36 F.4th
1294, 1306 (11th Cir. 2022). We determined that the federal con-
trolled substances schedules that defined a serious drug offense un-
der the ACCA were those in effect when the defendant committed
his federal offense and that those schedules did not cover ioflupane
at the time he committed his federal offense. Id. at 1299-1302.
Since Florida’s definition in § 893.13 covered ioflupane when he
was convicted of his prior cocaine-related offenses, § 893.13’s
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23-10857 Opinion of the Court 7
controlled-substance element was broader than the relevant ver-
sion of the federal controlled substances schedules, and his prior
cocaine-related convictions thus did not qualify as serious drug of-
fenses. Id. at 1303-04.
We then vacated our decision in Jackson I, and subsequently
held that the appellant’s state conviction under § 893.13 qualified as
a serious drug offense. Jackson II, 55 F.4th at 861-62. We held that
the ACCA’s definition of a serious drug offense incorporates the
version of the federal controlled substances schedules in effect
when the defendant was convicted of the prior state drug offense.
Id. at 854. We concluded that the appellant’s 1998 and 2004 Florida
cocaine-related convictions qualified as serious drug offenses be-
cause Florida’s controlled substances schedules included ioflupane
until 2017 and the federal controlled substance schedules also in-
cluded ioflupane until 2015. Id. at 851 & nn.3-4. Thus, as of the
time Jackson was convicted of the prior cocaine-based offenses in
1998 and 2004, Jackson’s state convictions under § 893.13 were de-
fined in the same way that the ACCA defined a serious drug of-
fense. Therefore, Jackson’s prior convictions qualified for the en-
hancement under the ACCA.
Similarly, Kelly’s prior Florida cocaine-based drug convic-
tions all predated 2015—i.e. at a time that Florida’s cocaine-based
crimes were defined in the same way that the ACCA defined a seri-
ous drug offense—and therefore qualify as serious drug offenses for
the ACCA enhancement. This issue is controlled by our decision
in Jackson II. The prior-panel-precedent rule requires subsequent
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8 Opinion of the Court 23-10857
panels to follow the precedent of the first panel to address the rele-
vant issue, unless and until the first panel’s holding is overruled by
us sitting en banc or by the Supreme Court. Scott v. United States,
890 F.3d 1239, 1257 (11th Cir. 2018). The granting of certiorari
alone does not affect our precedent. Schwab v. Sec’y, Dep’t of Corr.,
507 F.3d 1297, 1298 (11th Cir. 2007).
Here, following Jackson II, the court did not err in determin-
ing that Kelly’s state drug convictions were serious drug offenses
and therefore did not err in applying the ACCA enhancement.
AFFIRMED.