Case: 14-11721    Date Filed: 01/09/2015   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-11721
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 6:12-cr-00210-ACC-DAB-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                       versus

CURTIS LEE DALLAS,

                                                         Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                (January 9, 2015)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

      Curtis Dallas appeals his convictions and total 240-month sentence, imposed

after a jury returned a guilty verdict on Count One for being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1) , and
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on Count Two for possessing a firearm in furtherance of drug trafficking, a

violation of 18 U.S.C. § 924(c). On appeal, Dallas argues that: (1) the evidence

was insufficient to support a conviction on Count Two because the government

failed to establish that he possessed a weapon in furtherance of drug trafficking

activity; and (2) three of his prior convictions could not be counted as predicate

offenses to enhance a sentence under the Armed Career Criminal Act (“ACCA”),

either because the pleas entered in those cases were effectively invalid due to his

brain injury, or because the statute of conviction was not a sufficient ACCA

predicate. After thorough review, we affirm.

      We review a challenge to the sufficiency of the evidence de novo. United

States v. Gamory, 

, 497 (11th Cir. 2011). We review properly

preserved sentence calculation issues under a two-prong standard: We review

factual findings for clear error, and the application of the law to the facts de novo.

United States v. Williams, 

, 1247-48.          We review a preserved

challenge to the eligibility of a prior conviction for the ACCA enhancement de

novo. United States v. James, 

, 1153 (11th Cir. 2005).

      First, we are unpersuaded by Dallas’s sufficiency of the evidence claim. In

considering the sufficiency of the evidence, we view the evidence in the light most

favorable to the government, with all inferences and credibility choices made in the

government’s favor. 

. We will affirm the conviction if,


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based on the evidence, a reasonable jury could have found the defendant guilty

beyond a reasonable doubt. 

not necessary that the evidence presented at

trial excludes every reasonable hypothesis of innocence or is wholly inconsistent

with every conclusion except that of a defendant’s guilt. 

“bound by the

jury’s credibility choices, and by its rejection of the inferences raised by the

defendant.” United States v. Peters, 

, 1268 (11th Cir. 2005).

      To prove a violation of 18 U.S.C. § 924(c), the government must establish

that a defendant “(1) knowingly (2) possessed a firearm (3) in furtherance of any

drug trafficking crime for which he could be prosecuted in a court of the United

States.” United States v. Williams, 

, 1232 (11th Cir. 2013). Factors

pertinent to the “in furtherance” element include (1) the type of drug activity that is

being conducted; (2) the accessibility of the firearm; (3) the type of weapon; (4)

whether the weapon is stolen; (5) the status of the possession (legitimate or illegal);

(6) whether the gun is loaded; (7) proximity to drugs or drug profits; and (8) the

time and circumstances under which the gun is found. 

In

Williams, we held that evidence was sufficient to support a conviction under 18

U.S.C. § 924(c), where the defendant had a loaded gun in his waistband, near drugs

and money consistent with dealing. 

We said that in light of the

evidence, a jury could easily distinguish Williams’ possession of a gun from that of




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“innocent possession of a wall-mounted antique or an unloaded hunting rifle

locked in a cupboard.” 

(quotation omitted).

      Here, the government produced sufficient evidence at trial that Dallas

possessed a gun in furtherance of drug trafficking. As the record reveals, witnesses

testified that Dallas concealed the gun in his waistband, near drugs and money in

his pockets. Witnesses also testified that the drugs and money were of a quantity

and organization consistent with drug dealing. Moreover, officers found the gun at

a time when Dallas did not necessarily expect to encounter police. Although the

drug quantity discrepancies or the lack of evidence showing Dallas directly

wielded the gun could support alternative scenarios, the government was not

required to foreclose all possible scenarios of guilt; it only had to establish factors

such as proximity of a gun to a quantity of drugs or other drug trafficking

instrumentality. Thus, based on the evidence presented at trial, a reasonable jury

could find that Dallas violated 18 U.S.C. § 924(c).

      We also are unconvinced by Dallas’s argument that his state convictions do

not qualify as predicate offenses under the ACCA based on his claim that his

mental condition at the time he entered into the three plea agreements effectively

deprived him of assistance of counsel. Indeed, our case law and that of the

Supreme Court is clear: An appellant may not challenge the integrity of a state

court conviction for the ACCA enhancement purpose unless the conviction


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resulted from uncounseled proceedings. Custis v. United States, 

,

496-97 (1994); United States v. Covington, 

, 1345 (11th Cir. 2009).

      In this case, Dallas admitted that he had counsel when he pled guilty and

received each of the three convictions he sought to challenge in the district court.

On this record, the district court correctly determined that precedent precludes

federal review of Dallas’s state court convictions. The district court therefore did

not err in finding that the state court convictions could not be challenged as they

related to the ACCA enhancement in Dallas’s case.

      Finally, we find no merit to his claim that the statute of conviction was not a

sufficient ACCA predicate. We analyze the statute of conviction for the prior

offense under the categorical approach, looking to the statutory definition of the

state offense in comparison to the federal counterpart. 

.

Under the categorical approach, a conviction is an appropriate ACCA “serious

drug offense” predicate if the statute of a predicate conviction has the same

elements, or more narrow elements, than the federal equivalent. See Descamps v.

United States, 

, 2283-84 (2013); 

.

We’ve said, however, that in order to be counted as a predicate “serious drug

offense” the language of a Florida statute need not be identical to the ACCA’s

definition of a “serious drug offense.” 

.




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      Dallas was convicted of violating Florida Statute § 893.13, which defines an

offender as a person who “sell[s], manufacture[s], or deliver[s], or possess[es] with

intent to sell, manufacture, or deliver” cocaine. FLA. STAT. § 893.13(1)(a)(1).

Florida Statute § 893.101 clarifies § 893.13(1)(a)(1) by indicating that knowledge

of the illicit nature of a substance is not an element of § 893.13. FLA. STAT. §

893.101. For purposes of the ACCA enhancement, a “serious drug offense” is

defined in 18 U.S.C. § 924(e)(2)(A)(ii) as “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)(ii).

      The district court did not err in concluding that Dallas’s prior convictions

under Florida Statute § 893.13 qualified for the ACCA enhancement because both

the Florida statute and the federal statute have the same elements. Dallas argues

that Florida Statute § 893.13 lacks a mens rea requirement, unlike the definition of

a serious drug offense in 18 U.S.C. § 924(e)(2)(A)(ii). He relies on Donawa v.

United States Att’y Gen., 

(11th Cir. 2013), but we disagree. For

starters, Donawa dealt with § 924(c) of the ACCA; section 924(c) defines

qualifying predicate offenses by external reference to 21 U.S.C. § 841(a)(1), which

contains a mens rea element. Dallas’s case, however, deals with § 924(e) of the

ACCA, which defines a “serious drug offense” internally and does not include a


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mens rea element. Because of this critical distinction between § 924(c) and §

924(e)(2)(A)(ii), Florida Statute § 893.13 qualified for the ACCA enhancement.

      AFFIRMED.




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