United States v. Conage

• Docket Number: 17-13975
• Decision Date: 30 September 2022
• Citation: 50 F.4th 81 (Mem)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony CONAGE, Defendant- Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

50 F.4th 81 (Mem)

UNITED STATES of America, Plaintiff-Appellee,

v.Michael Anthony CONAGE, Defendant- Appellant.

No. 17-13975

United States Court of Appeals, Eleventh Circuit.

Filed: September 30, 2022

Holly Lynn Gershow, 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, Consumer Financial Protection Bureau, Atlanta, GA, for Defendant-Appellant.

Before Ed Carnes, Julie Carnes, and Clevenger,^* Circuit Judges.

PER CURIAM:

In his appeal before this Court, defendant Conage argued that the district court improperly considered as an Armed Career Criminal Act ("ACCA") predicate offense his prior conviction for drug trafficking under Florida Statutes § 893.135(1)(b) 1. Conage contended that the particular Florida statute did not constitute a serious drug offense under the ACCA because the elements of that statute did not satisfy the requirements of the ACCA.

Resolution of Conage's argument required a determination of the elements of the Florida statute. We certified the question raised by Conage's challenge to the Florida Supreme Court. See United States v. Conage , 976 F.3d 1244, 1263 (11th Cir. 2020). The Florida Supreme Court has now answered this Court's certified question, holding that, for purposes of Florida's drug trafficking statute, "a completed purchase requires proof that the defendant both (1) gave consideration for and (2) obtained control of a trafficking quantity of illegal drugs," and further that "the requisite control [consists] of the same range of conduct that qualifies as constructive possession under federal law."

Conage v. United States , ––– So. 3d ––––, ––––, 2022 WL 3651398, at *6 (Fla. Aug. 25, 2022).

With this response, the Florida Supreme Court has resolved the sole issue that Conage raised before this Court on appeal: whether the district court properly relied on Conage's prior Florida drug trafficking conviction in determining that Conage had three prior serious drug offenses for purposes of the ACCA. Given the Florida Supreme Court's response, which is set out below, Conage's challenge to his sentence fails.

For that reason, and with great appreciation to the Florida Supreme Court for its assistance, we follow the Florida Supreme Court's decision and AFFIRM Conage's conviction and sentence.¹

Appendix

Supreme Court of Florida

No. SC20-1441

MICHAEL ANTHONY CONAGE, Appellant,

vs.

UNITED STATES OF AMERICA, Appellee.

August 25, 2022

MUÑIZ, C.J.

The U.S. Court of Appeals for the Eleventh Circuit has certified to us a question about the meaning of the word "purchase" in Florida's drug trafficking law. The court asks whether a completed purchase of illegal drugs necessarily entails the defendant purchaser's possession of those drugs, as federal law defines possession. We conclude that it does, and in doing so we reject the argument that a purchase is necessarily complete as soon as the would-be purchaser pays for the drugs.

I.

In the underlying federal case, Michael Conage was convicted of a gun possession crime and then sentenced to a mandatory prison term under the Armed Career Criminal Act. United States v. Conage , 976 F.3d 1244, 1253 (11th Cir. 2020) ; 18 U.S.C. § 924(e)(1). To impose that sentence, the trial court first had to conclude that Conage had three previous convictions for a "serious drug offense" as defined by the ACCA. One of the three convictions that the trial court counted against Conage was a 2006 conviction for trafficking in cocaine in violation of section 893.135(1)(b) 1., Florida Statutes (2006). Conage appealed his sentence to the Eleventh Circuit, arguing that it was error to deem that conviction an ACCA predicate offense.

The ACCA defines a "serious drug offense" as one "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance." 18 U.S.C. § 924(e)(2)(A)(ii). To determine whether a previous conviction meets that definition, federal courts use what they call a "categorical approach." Conage , 976 F.3d at 1250. That approach considers "only the fact of the defendant's conviction and the statutory definition of the state offense at issue, rather than the facts underlying the defendant's conviction." Id. So, for purposes of applying the ACCA to Conage, the factual details supporting Conage's 2006 Florida drug trafficking conviction do not matter—what matters is how section 893.135(1) defines the crime of drug trafficking.

Under section 893.135(1), a person commits drug trafficking when he knowingly (1) "sells," (2) "purchases," (3) "manufactures," (4) "delivers," (5) "brings into this state," or (6) is "in actual or constructive possession of" a trafficking quantity of illegal drugs.¹ The "categorical approach" means that, for a Florida drug trafficking conviction to qualify as an ACCA predicate offense, each of these six ways of committing drug trafficking under section 893.135(1) must meet the ACCA's definition of a "serious drug offense." Conage , 976 F.3d at 1251.

Conage's appeal to the Eleventh Circuit focuses on only one of the statute's six forms of drug trafficking, trafficking by purchase. Recall that the ACCA defines a "serious drug offense" as one "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance." 18 U.S.C. § 924(e)(2)(A)(ii). Relevant here is the definition's reference to possessing with intent to distribute a controlled substance. Eleventh Circuit precedent says that possession of a trafficking quantity of illegal drugs implies an intent to distribute those drugs. Conage , 976 F.3d at 1253 (citing United States v. James , 430 F.3d 1150, 1154 (11th Cir. 2005) ). So, trafficking by purchase under section 893.135(1) can meet the ACCA definition of a "serious drug offense" if a completed purchase necessarily entails the defendant's possession of the purchased drugs. In his federal appeal, Conage has contended that a purchase is complete upon payment by the defendant and that therefore a completed purchase does not require proof that the defendant possessed the purchased drugs.

The Eleventh Circuit has determined that it cannot resolve Conage's appeal without additional guidance about how Florida law defines a completed purchase in this context. The court's uncertainty is understandable. Section 893.135(1) does not define the term "purchase," and Florida court decisions touching on trafficking by purchase are sparse and unilluminating.² Moreover, the stakes in this case extend far beyond Conage. According to the Eleventh Circuit, the answer to the certified question has "enormous" implications for federal law. Conage , 976 F.3d at 1248. If Conage's position on the meaning of "purchase" is correct, "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." Id.

To help us answer the certified question, we have received briefing and oral argument from Conage and from the United States. After we heard oral argument, the State of Florida submitted a brief supporting Conage. Conage and the United States then filed responses to the State's brief.

II.

The certified question is:

How does Florida law define the term "purchase" for purposes of Florida Statutes § 893.135(1) ? More specifically, does a completed purchase for purposes of conviction under § 893.135(1) require some form of possession—either actual or constructive—of the drug being purchased?

Id . at 1263. The Eleventh Circuit explains that its focus "is on the conduct that the ‘purchasing’ element of [Florida's drug trafficking law] prohibits." Id. at 1252. The court needs to know "what the State must prove in order to convict a defendant of purchasing a trafficking quantity of" illegal drugs. Id. at 1247.

Before explaining our answer to the certified question, we address a threshold issue about Florida's law of statutory interpretation. The United States encourages us to use an approach that is often linked to a passage from our Court's decision in Holly v. Auld , 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157, 159 (Fla. 1931) ). There we said that "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction." In practice, following this maxim often leads the interpreter to focus on a disputed word or phrase in isolation; the maxim also leaves the interpreter in the dark about how to determine whether a particular word or phrase has a clear meaning.

We believe that the Holly principle is misleading and outdated. More recently our Court has said that judges must "exhaust ‘all the textual and structural clues’ " that bear on the meaning of a disputed text. Alachua County v. Watson , 333 So. 3d 162, 169 (Fla. 2022) (quoting Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 1480, 209 L.Ed.2d 433 (2021) ). That is because "[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co. , 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).

Viewed properly as rules of thumb or guides to interpretation, rather than as inflexible rules, the traditional canons of statutory interpretation can aid the interpretive process from beginning to end (recognizing that some canons, like the rule of lenity, by their own terms come into play only after other interpretive tools have been exhausted). It would be a mistake to think that our law of statutory interpretation requires interpreters to make a threshold determination of whether a term has a "plain" or "c...