USA v. Aundrice Moss

Filing

Opinion issued by court as to Appellant Aundrice Moss. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 14-12229

Date Filed: 02/03/2015

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12229
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20368-JLK-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUNDRICE MOSS,
a.k.a. Nicalaunto Moss,
a.k.a. Dre,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 3, 2015)
Before TJOFLAT, JULIE CARNES, and BLACK, Circuit Judges.
PER CURIAM:

Case: 14-12229

Date Filed: 02/03/2015

Page: 2 of 5

Aundrice Moss (“Defendant”) appeals his 180-month sentence, which the
district court imposed after he pled guilty to possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On
appeal, Defendant argues that the district court erred by enhancing his sentence
under the Armed Career Criminal Act (“ACCA”) because his two prior convictions
for possession of cocaine with the intent to sell or deliver, in violation of Fla. Stat.
§ 893.13(1)(a), did not qualify as ACCA-predicate “serious drug offense[s].” We
disagree, and affirm Defendant’s sentence.
I. Background
After Defendant entered his guilty plea, the probation office prepared
Defendant’s presentence investigation report (“PSI”). The probation officer
calculated an initial base offense level of 26, under U.S.S.G. § 2K2.1(a)(1),
because Defendant’s offense involved a semi-automatic weapon capable of
accepting a large-capacity magazine and he had at least two prior felony
convictions for a crime of violence or controlled substance offense. Because he
had trafficked in firearms, Defendant received a four-level enhancement under
§ 2K2.1(b)(5), resulting in an offense level of 30. The probation officer also
determined that Defendant was an armed career criminal subject to an offense level
of 33 under § 4B1.4(b)(3)(B), because he had one prior conviction for a violent
felony and three prior convictions for serious drug offenses. The probation officer
2

Case: 14-12229

Date Filed: 02/03/2015

Page: 3 of 5

then applied a three-level acceptance-of-responsibility reduction, pursuant to
§ 3E1.1(a) and (b), yielding a total offense level of 30.
Defendant qualified for a criminal history category of VI, based on both his
numerous criminal convictions and on his armed career criminal status. As
relevant here, the PSI noted that Defendant had two September 2011 convictions
for possession of cocaine with the intent to sell or deliver, in violation of Fla. Stat.
§ 893.13(1)(a). Based on a total offense level of 30 and his criminal history
category of VI, Defendant’s initial guideline range was 168 to 210 months’
imprisonment. However, as an armed career criminal, Defendant was subject to a
statutory minimum 15-year (180-month) term of imprisonment. See 18 U.S.C.
§ 924(e)(1). Thus, Defendant’s guideline range became 180 to 210 months’
imprisonment.
Prior to and during his sentencing hearing, Defendant objected to the ACCA
sentence enhancement. Defendant argued that his prior § 893.13(1)(a) convictions
did not qualify as ACCA-predicate offenses because they failed to meet that
statute’s definition of “serious drug offense[s].” According to Defendant, his
convictions failed to meet that definition because § 893.13(1)(a) did not require the
defendant’s knowledge of the illicit nature of the controlled substance he
possessed. The district court overruled this objection and sentenced Defendant to
imprisonment for 180 months.
3

Case: 14-12229

Date Filed: 02/03/2015

Page: 4 of 5

II. Discussion
As he did before the district court, Defendant argues on appeal that his two
prior § 893.13(1)(a) convictions do not qualify as ACCA-predicate “serious drug
offense[s].” Defendant contends that, when applying the categorical approach, his
§ 893.13(1)(a) convictions do not fit within the generic federal definition of a
“serious drug offense” because under Florida law, unlike federal law, the State is
not required to prove that the defendant had knowledge of the illicit nature of the
controlled substance he possessed. We review de novo whether a defendant’s prior
conviction qualifies as a predicate offense under the ACCA. United States v.
Smith, 742 F.3d 949, 952 (11th Cir. 2014).
Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject
to a mandatory minimum, 15-year sentence if he has three prior convictions for a
violent felony or “serious drug offense.” 18 U.S.C. § 924(e)(1). A “serious drug
offense” is defined as “(i) an offense under the Controlled Substances Act, . . . or
(ii) 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)(i), (ii).
Defendant’s argument that his § 893.13(1)(a) conviction for possessing
cocaine with the intent to sell or deliver is not a “serious drug offense” under the
4

Case: 14-12229

Date Filed: 02/03/2015

Page: 5 of 5

ACCA is squarely foreclosed by this Court’s recent precedent. See United States
v. Smith, __ F.3d __, 2014 WL 7250963, at *5 (11th Cir. Dec. 22, 2014) (holding
that a conviction under § 893.13(1) is a “serious drug offense” as defined in 18
U.S.C. § 924(e)(2)(A)). “We are bound by prior panel decisions unless or until we
overrule them while sitting en banc, or they are overruled by the Supreme Court.”
United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011). Accordingly, we
affirm Defendant’s 180-month sentence.
AFFIRMED.

5