United States v. Conage, No. 17-13975

• Decision Date: 30 September 2020
• Docket Number: No. 17-13975
• Citation: 976 F.3d 1244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony CONAGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

976 F.3d 1244

UNITED STATES of America, Plaintiff-Appellee,

v.Michael Anthony CONAGE, Defendant-Appellant.

No. 17-13975

United States Court of Appeals, Eleventh Circuit.

September 30, 2020

Holly Lynn Gershow, U.S. Attorney Service-Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Donna Lee Elm, Law Practice of Donna Elm, Cottonwood, AZ, Conrad Benjamin Kahn, Danli Song, Federal Public Defender's Office, Orlando, FL, Alisha Marie S. Nair, City of Atlanta Law Department, Atlanta, GA, for Defendant-Appellant.

Before ED CARNES, JULIE CARNES, and CLEVENGER,^* Circuit Judges.

JULIE CARNES, Circuit Judge:

The outcome of this criminal sentencing appeal turns on how we interpret Florida's cocaine trafficking statute, Florida Statutes § 893.135(1)(b) 1.DefendantMichael Conage, who was convicted of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g), was sentenced under the Armed Career Criminal Act (the "ACCA").The ACCA imposes a 15-year mandatory minimum sentence for a defendant convicted under § 922(g) who has three previous convictions for a violent felony or a serious drug offense as defined by the ACCA.See18 U.S.C. § 924(e)(1).The district court held that Conage had been convicted of three qualifying drug offenses, one of which offenses was trafficking in cocaine in violation of Florida Statutes § 893.135(1)(b) 1., and the court sentenced Conage accordingly.Conage appeals that ruling, arguing that a Florida drug trafficking conviction cannot satisfy the ACCA's definition of a serious drug offense.

The ACCA defines a "serious drug offense" as an offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance."See18 U.S.C. § 924(e)(2)(A)(ii)(emphasis added).To determine whether the district court erred by sentencing Conage under the ACCA, we must decide whether trafficking cocaine in violation of Florida Statutes § 893.135(1)(b) 1. satisfies the ACCA's definition of a serious drug offense.Florida Statutes § 893.135(1)(b) 1. enumerates six methods of trafficking cocaine: selling, purchasing, manufacturing, delivering, bringing into the state, or knowingly possessing cocaine in an amount that Florida law specifies as constituting a trafficking quantity: 28 grams or more of cocaine.Under federal law interpreting the ACCA, a § 893.135(1) conviction can qualify as a serious drug offense under the ACCA only if each one of these six alternatives satisfies the ACCA definition of a serious drug offense.

Conage argues that a conviction based on one of these methods of violating the statute—"purchasing" a trafficking quantity of cocaine,¹ —would not qualify under federal law as a serious drug offense, which, to repeat, requires that the conduct prohibited by the particular drug statute"involve"² the manufacture, distribution, or possession with the intent to distribute a controlled substance.If he is right, the district court improperly sentenced him pursuant to the ACCA because, again under federal law, if even one of the methods for violating Florida Statutes § 893.135(1) fails to constitute a serious drug offense, then the entire statute falls for purposes of being counted as a predicate conviction for ACCA purposes.So, this Court must now decide if the purchase of a trafficking quantity of cocaine qualifies as a serious drug offense as defined by the ACCA.The answer to this question, however, depends on how Florida Statutes § 893.135(1) defines "purchasing," or, stated another way, what the State must prove in order to convict a defendant of purchasing a trafficking quantity of cocaine.

We are unable to answer the pivotal question in this appeal, however, because neither Florida Statutes § 893.135(1) nor Florida caselaw sets out the elements of the offense of trafficking by purchasing a controlled substance or otherwise defines clearly the term "purchasing" as used in the statute.We can safely assume that the question whether a conviction for drug trafficking under Florida law qualifies as an ACCA serious drug offense will arise in many cases, meaning that this issue is certain to recur.Moreover, the significance of the answer to this question is enormous.Florida Statutes § 893.135(1), which addresses drug trafficking for multiple types of controlled substances, is the most serious of all drug offenses under Florida law.Yet, if Conage is correct in his assertion that the "purchasing" of a trafficking quantity of a controlled substance does not involve possession with intent to distribute that substance, then no Florida drug trafficking conviction under § 893.135(1) can ever qualify as an ACCA predicate offense, notwithstanding that statute's status as Florida's most serious criminal drug statute.Thus, in addition to being unsettled under Florida law, the issues presented by this appeal are sufficiently important to warrant certification to the Florida Supreme Court.

I.BACKGROUND

In September 2016, Port Orange police officers executed a search warrant at an apartment in Port Orange, Florida after receiving an anonymous tip reporting suspicious activity at the apartment and observing defendantMichael Conage conduct what the police believed were numerous drug transactions out of the apartment.The search yielded two guns, multiple rounds of ammunition, hydromorphone (including 94 grams of hydromorphone pills and 34 grams of dilaudid) and multiple other drugs (oxycodone, amphetamine, cocaine base, and marijuana) in a bedroom near Conage's wallet and personal effects.Having identified Conage as a convicted felon based on his driver's license and Volusia County jail photographs, the police arrested him for being a felon in possession of a firearm and ammunition and for possessing narcotics.

The police reviewed Conage's criminal history and discovered that he had at least nine felony convictions in Volusia County, Florida, including drug convictions, a conviction for grand theft of a motor vehicle, and two convictions for fleeing and eluding a law enforcement officer.Conage was charged in a superseding indictment with possessing firearms and ammunition as a convicted felon in violation of 18 U.S.C. §§ 922(g)and924(e) and possessing hydromorphone with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).A jury convicted Conage on both counts charged in the indictment after a two-day trial.

Conage's presentence report ("PSR") concluded that he should be sentenced as an armed career criminal under the ACCA, which imposes a 15-year mandatory minimum sentence when a defendant who violates § 922(g) has three previous convictions for a violent felony or a serious drug offense as defined by the ACCA.See18 U.S.C. § 924(e)(1).The PSR determined that Conage had been convicted of three state offenses that satisfied the ACCA's definition of a serious drug offense, one of which offenses was trafficking cocaine in violation of Florida Statutes § 893.135(1)(b) 1.³

Conage objected to the PSR's conclusion that he should be sentenced under the ACCA, arguing that his cocaine trafficking conviction did not qualify as a serious drug offense under the ACCA.Conage noted that Florida Statutes § 893.135(1)(b) 1. prohibits trafficking cocaine by various means, and that federal law required the district court to assume that Conage had committed the offense by purchasing a trafficking quantity of cocaine: an act that Conage says does not involve manufacturing, distributing, or possessing cocaine with intent to distribute, as is required for an offense to qualify as an ACCA predicate offense.Without this trafficking conviction, Conage would have only two qualifying convictions, not the three convictions necessary to trigger the ACCA.The district court disagreed with Conage's argument and sentenced him to serve 15 years as required by the ACCA.

Conage appeals his sentence.As he did in the district court, Conage argues that his cocaine trafficking conviction—which, for purposes of this appeal and regardless of the actual facts,⁴we must assume to be a conviction for trafficking by purchasing—does not qualify as a serious drug offense under the ACCA, meaning that he lacks the three qualifying convictions necessary to trigger the ACCA.The question presented by this appeal is thus whether a conviction under Florida law for trafficking by purchasing a trafficking quantity of cocaine (28 or more grams) is an offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute" a controlled substance, which is required to satisfy the ACCA's definition of a serious drug offense.See18 U.S.C. § 924(e)(2)(A)(ii)(emphasis added).

II.STANDARD OF REVIEW

We review de novo the legal question whether a state conviction qualifies as a serious drug offense under the ACCA.United States v. Robinson , 583 F.3d 1292, 1294(11th Cir.2009).When conducting our review, we are "bound by federal law when we interpret terms in the ACCA" and "bound by state law when we interpret elements of state-law crimes."United States v. Braun , 801 F.3d 1301, 1303(11th Cir.2015).

III.DISCUSSION

A.The Relevant Statutes: the ACCA and the Florida Drug Trafficking Statute

As noted, the ACCA requires a 15-year mandatory minimum sentence when a defendant who has three previous convictions for a serious drug offense violates § 922(g).See18 U.S.C. § 924(e)(1).The ACCA defines a serious drug offense as an offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance."Id.§ 924(e)(2)(A)(ii).This Court has adopted an "expansive interpretation of the word ‘involving’ as used in the ACCA's definition of a serious drug offense."United States v. White , 837 F.3d 1225, 1233(11th Cir.2016), cert. denied , ––– U.S. ––––, 138 S. Ct. 1282, 200 L.Ed.2d 477(2018).Pursuant to that interpretation, a state offense can...