Case: 19-14795    Date Filed: 09/21/2020   Page: 1 of 6



                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 19-14795
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 3:19-cr-00005-TJC-JBT-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,



                                  versus



GENESIS JAVON WHITE,

                                                         Defendant-Appellant.

                     ________________________

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

                           (September 21, 2020)
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Before JORDAN, NEWSOM and BLACK, Circuit Judges.

PER CURIAM:

       Genesis Javon White appeals his 195-month total sentence for possession of

a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The district

court determined White was subject to an increased 15-year mandatory-minimum

sentence under the Armed Career Criminal Act (ACCA) because he had three prior

convictions for “serious drug offense[s].” 1 18 U.S.C. § 924(e)(1).

       On appeal, White makes several arguments challenging his ACCA-enhanced

sentence, all of which are foreclosed by binding precedent either from the Supreme

Court or this Court. Specifically, White argues that the court erred in relying on

his prior three convictions for sale or delivery of cocaine in violation of Fla. Stat.

§ 893.13(1) as serious drug offenses because: (1) those offenses do not require an

element of mens rea for conviction and therefore cannot categorically qualify as

offenses “involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance”; and (2) the district court

improperly found at sentencing that the conduct underlying the convictions

occurred on different occasions. After review,2 we affirm.


       1
        White’s ACCA sentence was also predicated on a prior Florida conviction for
aggravated assault. On appeal, White challenges only the use of his prior drug convictions.
       2
        We review whether a conviction qualifies as a serious drug offense under the ACCA de
novo. United States v. White, 

, 1228 (11th Cir. 2016). We review de novo
whether crimes were committed on occasions different from one another within the meaning of
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       White first argues his Florida convictions for sale or delivery of cocaine do

not qualify as “serious drug offense[s]” under the ACCA. According to White, in

determining whether a particular offense qualifies as a serious drug offense, we

should first identify the elements of the “generic” federal offense, then ask whether

the elements of the state offense match those of the generic crime. He argues that

because his Florida convictions for sale or delivery of cocaine did not include a

mens rea element—knowledge of the illicit nature of the substance being

trafficked—those offenses do not match the generic federal offenses referenced in

§ 924(e)(2)(A)(ii).

       But as White acknowledges, our Court rejected that very argument in United

States v. Smith, 

(11th Cir. 2014), and specifically held a prior

conviction under Fla. Stat. § 893.13(1) is a “serious drug 

–68. Moreover, the Supreme Court recently agreed, holding

§ 924(e)(2)(A)(ii)’s “serious drug offense” definition does not call for a

comparison to a generic offense. Shular v. United States, 

, 782

(2020). Instead, it “requires only that the state offense involve the conduct

specified” in the statute.

it must involve “manufacturing,




the ACCA. United States v. Weeks, 

, 1261 (11th Cir. 2013). A prior panel’s
holding is binding precedent on all subsequent panels unless or until it is overruled while we are
sitting en banc, or until the precedent is overruled by the Supreme Court. United States v.
Jordan, 

, 1189 (11th Cir. 2011).
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distributing, or possessing with intent to manufacture or distribute, a controlled

substance.” White’s convictions for selling or delivering cocaine clearly qualify.

      Next, White argues the district court erred by making factual findings

regarding his prior convictions at his sentencing hearing. He claims the district

court violated his rights under the Fifth and Sixth Amendments because each of the

ACCA’s requirements—and particularly the requirement that each of the identified

predicate serious drug offenses occurred on different occasions—was not charged

in an indictment, admitted to by him during the plea colloquy, or proven to a jury

beyond a reasonable doubt. In confirming the fact of White’s prior Florida drug

convictions and that those offenses occurred on occasions different from one

another, the district court relied on certified copies of the state-court judgments and

charging documents provided by the government.

      As White acknowledges, the Supreme Court has repeatedly held the

Constitution does not require the fact of a prior conviction be charged in an

indictment or proven to a jury beyond a reasonable doubt, even if the existence of

such a prior conviction would increase the statutory minimum penalty. See Alleyne

v. United States, 

, 111 n.1 (2015) (recognizing that the fact of a prior

conviction is a “narrow exception” to the general rule that a jury must find any fact

that will increase the penalty for an offense); Apprendi v. New Jersey, 

, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases


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the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt. (emphasis added));

Almendarez-Torres v. United States, 

, 226–27 (1998).

       Moreover, our Court has specifically held that, “[t]he existence of both

‘prior convictions and the factual nature of those convictions, including whether

they were committed on different occasions,’ may be determined by district courts

‘so long as they limit themselves to Shepard-approved documents.’” United States

v. Longoria, 

, 1281 (11th Cir. 2017) (emphasis added) (quoting

United States v. Weeks, 

, 1259 (11th Cir. 2015)). The documents the

government provided here constituted such documents, and the district court

properly relied on them in finding both the existence of the prior convictions and

that they occurred on different occasions. 3 See Shepard v. United States, 

, 16, 26 (2005).

       Accordingly, all White’s challenges to his sentence are foreclosed by

binding precedent, and we affirm.



       3
          To the extent White argues the district court’s substantive finding that his three prior
serious drug offenses occurred on different occasions was in error, his argument is without merit.
The charging documents submitted by the government showed the three instances of sale or
delivery of cocaine occurred on June 28, 2010, June 30, 2010, and July 16, 2010, although the
first two offenses were alleged in the same charging document. “We have held that so long as
predicate crimes are successive rather than simultaneous, they constitute separate criminal
episodes for purposes of the ACCA.” 

(quotation marks omitted); see
also United States v. Sneed, 

, 1329 (2010) (noting § 924(e)(1) “does not require
separate indictments”).
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AFFIRMED.




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