USA v. Harry Wilcoxson

Filing

Opinion issued by court as to Appellant Harry Wilcoxson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 08/17/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12997
Non-Argument Calendar
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D.C. Docket No. 4:13-cr-00085-RH-CAS-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY WILCOXSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 17, 2017)
Before MARTIN, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:

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Harry Wilcoxson appeals the 240-month prison sentence he received after he
was convicted for three counts of distribution of cocaine, one count of possession
of cocaine with the intent to distribute, one count of possession of a firearm in
furtherance of a drug trafficking offense, and one count of possession of a firearm
as a felon. After careful review, we affirm.
I.
Wilcoxson was indicted on three counts of distributing cocaine in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts 1–3), one count of possessing cocaine
with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count
4), one count of possessing a firearm in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 5), and one count of possession of
a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 6).
He pled guilty to Counts 1 through 4, and was convicted on Counts 5 and 6 after
two jury trials.
According to the presentence investigation report (“PSR”), Wilcoxson
qualified for a lengthened prison sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), based on four of his earlier convictions: (1) assault
with intent to commit manslaughter in Florida (1967); (2) assault with intent to
commit second-degree murder in Florida (1973); (3) trafficking in cocaine in
Florida (1989); and (4) trafficking in cocaine in Georgia (2002). Based on a total
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offense level of 33 and a criminal history category of IV, the PSR determined that
Wilcoxson’s range of imprisonment under the United States Sentencing Guidelines
(“USSG”) was 188 to 235 months for Counts 1, 2, 3, 4, and 6, and 60 months for
Count 5, to be served consecutively.
Wilcoxson objected to the PSR’s determination that he qualified for a
lengthened sentence under the ACCA. While he conceded that his two prior
assault convictions were violent felonies, he said neither of his prior drug
trafficking offenses could serve as a valid ACCA predicate. At the sentencing
hearing, the district court overruled Wilcoxson’s objection to his ACCA sentence.
The court said it was bound by Eleventh Circuit precedent to find that Wilcoxson’s
two prior trafficking convictions were predicate offenses under the ACCA. As a
result, the court imposed the mandatory minimum 240-month total sentence.
II.
On appeal, Wilcoxson argues that neither of his prior drug trafficking
convictions qualifies as a valid predicate offense under the ACCA because neither
falls within the ACCA’s definition of a “serious drug offense.”
We review de novo whether a particular conviction qualifies as a valid
predicate offense under the ACCA. United States v. White, 837 F.3d 1225, 1228
(11th Cir. 2016) (per curiam). Under the ACCA, a defendant convicted of
possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) is subject to a
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mandatory minimum fifteen-year prison sentence if he has three prior convictions
for either a “serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e)(1).
The ACCA defines a “serious drug offense” to include any 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)(ii). Because
Wilcoxson conceded below that his two prior convictions for assault can serve as
valid ACCA predicates, we may affirm the district court so long as we determine
that one of Wilcoxson’s drug trafficking convictions can support his ACCA
sentence.
To determine whether Wilcoxson’s drug trafficking convictions are serious
drug offenses within the meaning of the ACCA, we must apply what is known as
the “categorical approach.” Under this approach, we do not look at the facts that
resulted in the earlier conviction. Descamps v. United States, 570 U.S. ___, 133 S.
Ct. 2276, 2283 (2013). Instead, Supreme Court precedent requires us to look only
to the elements of the statute under which the person was convicted. See Mathis v.
United States, 579 U.S. ___, 136 S. Ct. 2243, 2251 (2016). And in applying the
categorical approach, we must analyze “the version of state law that the defendant
was actually convicted of violating.” McNeill v. United States, 563 U.S. 816, 821,
131 S. Ct. 2218, 2222 (2011).
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Under our precedent and the categorical approach, Wilcoxson’s Florida
conviction for trafficking in cocaine is a valid ACCA predicate offense.
Wilcoxson was convicted of that offense in 1989. The version of the statute under
which Wilcoxson was convicted, Fla. Stat. § 893.135(1)(b) (1987 & Supp. 1988),
said “[a]ny person who knowingly sells, purchases, manufactures, delivers, or
brings into this state, or who is knowingly in actual or constructive possession of,
28 grams or more of cocaine . . . is guilty of a felony of the first degree.”
Wilcoxson argues his conviction under § 893.135(1)(b) was not a serious drug
offense under the ACCA because it “allow[s] for conviction for trafficking solely
for the act of possession of controlled substances of a certain quantity, without . . .
requir[ing] [the state] to prove intent to distribute in order to obtain convictions.”
However, Wilcoxson correctly recognizes that his argument is foreclosed by our
decision in United States v. James, 430 F.3d 1150 (11th Cir. 2005), overruled on
other grounds by Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015),
and wishes to preserve his argument for further appellate review.
In James, this Court considered whether a defendant’s 1998 conviction
under the same cocaine trafficking statute could qualify as a serious drug offense
even though that statute did not require the state to prove an intent to manufacture
or distribute cocaine on the part of the defendant. See id. at 1152–54. The James
panel held the ACCA’s use of the word “involving” meant that “state offenses that
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do not have as an element the manufacture, distribution, or possession of drugs
with intent to manufacture or distribute” could still qualify as serious drug offenses
under the ACCA. Id. at 1155. It also concluded courts could infer that a defendant
who was convicted under the cocaine trafficking statute had an intent to distribute
cocaine from (1) the quantity of cocaine a defendant must possess in order to
violate the trafficking statute (28 grams); and (2) the trafficking statute’s placement
as the most serious crime in a three-tiered scheme in which trafficking carried
more severe penalties than both mere possession and possession with intent to
distribute. Id. at 1154–55.
This case mirrors James. The version of the cocaine trafficking statute here
contains nearly identical wording to the version of the statute in James. Compare
Fla. Stat. § 893.135(1)(b) (1987 & Supp. 1988), with James, 430 F.3d at 1153.
Thus, like in James, the statute under which Wilcoxson was convicted criminalized
mere possession of 28 grams or more of cocaine. Also, at the time Wilcoxson was
convicted of cocaine trafficking in Florida, that crime carried more severe penalties
than possessing cocaine with intent to distribute. Compare Fla. Stat.
§ 893.135(1)(b) (1987 & Supp. 1988) (classifying trafficking in cocaine as a firstdegree felony), with id. § 893.13(1)(a)(1) (classifying possessing cocaine with
intent to distribute as a second-degree felony). Based on these factors, James
mandates that Wilcoxson’s Florida cocaine trafficking conviction “involv[ed] . . .
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possessi[on] with intent to manufacture or distribute[] a controlled substance”
within the meaning of the ACCA. 18 U.S.C. § 924(e)(2)(A)(ii). And we must
apply James “unless and until [its] holding is overruled by the Court sitting en banc
or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th
Cir. 2001). As a result, Wilcoxson’s Florida cocaine trafficking conviction is a
valid ACCA predicate offense.
Because this conviction counts as Wilcoxson’s third ACCA predicate
offense, we need not decide whether his Georgia cocaine trafficking conviction is
also a serious drug offense under the ACCA.
AFFIRMED.

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