              Case: 12-15419   Date Filed: 05/29/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-15419
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 6:12-cr-00100-GKS-TBS-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellant,

                                     versus

TERRENCE JERMAINE NEAL,

                                                             Defendant-Appellee.

                          ________________________

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

                                 (May 29, 2013)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      The government appeals the 70-month sentence the district court imposed

after Terrance Neal pleaded guilty to one count of conspiracy to distribute and

possess with intent to distribute more than 500 grams of cocaine hydrochloride, in
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violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), and 846.       On appeal, the

government argues that the district court erred by not imposing the statutory ten-

year mandatory-minimum sentence required for a violation of § 841(b)(1)(B) after

a prior conviction for a felony drug offense. After careful review, we vacate and

remand for resentencing.

      We review constitutional questions and questions of statutory interpretation

de novo. United States v. Griffey, 589 F.3d 1363, 1365 n.3 (11th Cir. 2009).

      At sentencing, a district court must normally consider various sentencing

factors, including the applicable guideline range and the pertinent policy

statements of the Sentencing Commission. 18 U.S.C. § 3553(a)(4)-(a)(5).

However, “[a] mandatory minimum sentence trumps an advisory Guideline

calculation and the various factors considered by district courts under 18 U.S.C. §

3553(a).” United States v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013).

      The federal statute at issue provides for a penalty of not less than ten years

and not more than life imprisonment for any person whose violation of the statute

(1) involved 500 grams or more of a mixture or substance containing a detectable

amount of cocaine and (2) occurred “after a prior conviction for a felony drug

offense has become final.” 21 U.S.C. § 841(b)(1)(B)(ii)(II). A “felony drug

offense” is defined, inter alia, as “an offense that is punishable by imprisonment

for more than one year under any law of . . . a State.” Id. § 802(44). We have held


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that “what constitutes a ‘conviction’” under section 841(b)(1)(B) is a question of

federal sentencing law, rather than state law. United States v. Mejias, 47 F.3d 401,

403-04 (11th Cir. 1995). For federal sentencing purposes, a “prior plea of nolo

contendere with adjudication withheld in Florida state court is a ‘conviction’ that

supports an enhanced sentence under section 841(b)(1)(B).” Id. at 404.

      To support a § 841(b)(1)(B) statutory enhancement, the government must

file an information notifying the defendant of the enhancement and the prior

convictions upon which it is based. 21 U.S.C. § 851(a)(1). The defendant may

respond that the conviction was obtained in violation of the U.S. Constitution, and

bears the burden of proving the conviction’s constitutional infirmity by a

preponderance of the evidence. Id. § 851(c)(2). However, he may not “challenge

the validity of any prior conviction alleged under this section which occurred more

than five years before the date of the information alleging such prior conviction.”

Id. § 851(e). We have upheld the validity of § 851(e)’s limitations period. See

United States v. Williams, 954 F.2d 668, 673 (11th Cir. 1992) (holding that §

851(e)’s limitations period was constitutional because it was “reasonably tailored

to impose enhanced sentences on recidivists”).

      The specific subsection of the Florida drug possession statute under which

Neal was convicted makes it unlawful “for any person to be in actual or

constructive possession of a controlled substance,” and provides that “[a]ny person


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who violates this provision commits a felony of the third degree.” Fla. Stat. Ann. §

893.13(6)(a).    In Florida, a third-degree felony is punishable by a term of

imprisonment “not exceeding 5 years.” Fla. Stat. Ann. § 775.082(3)(d).

      Here, the district court erred in imposing a 70-month sentence rather than the

120-month mandatory minimum. To begin with, we have squarely held that a

Florida state criminal proceeding in which adjudication was withheld following a

plea constitutes a “conviction” for purposes of the § 841(b)(1)(B) statutory

enhancement. Mejias, 47 F.3d at 404. Because Neal’s conviction for cocaine

possession under § 893.13(6)(a) was punishable by more than one year of

imprisonment, it constituted a “felony” drug offense, 21 U.S.C. § 802(44), and he

was subject to the 120-month mandatory minimum in § 841(b)(1)(B) following the

government’s filing of its § 851 notice.

      We reject Neal’s remaining arguments -- first, that the district court’s

sentence violated the mandate to avoid sentencing disparities found in 18 U.S.C. §

3553(a). As we’ve made clear, the mandatory minimum trumps the advisory

guidelines and the district court’s obligation to consider sentencing factors under §

3553(a). Carillo-Ayala, 713 F.3d at 88. Neal’s challenge to the constitutionality of

§ 893.13(6)(a) also lacks merit. Among other things, Neal was statutorily barred

from challenging the validity of his Florida conviction.       21 U.S.C. § 851(e);

Williams, 954 F.2d at 674. Accordingly, we vacate and remand for resentencing.


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VACATED AND REMANDED.




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