             Case: 13-11733   Date Filed: 05/20/2014   Page: 1 of 9


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11733
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 7:12-cr-00034-HL-TQL-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

KRISTOPHER BERNARD BRADLEY,

                                                           Defendant-Appellant.

                         ________________________

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

                                (May 20, 2014)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Kristopher Bernard Bradley appeals his 200-month sentence, imposed

pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), after
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pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e). For the first time on appeal, Bradley raises three

arguments. First, he argues that the district court erred in finding that his 2004

Georgia conviction for possession with intent to distribute marijuana was a

predicate felony for an ACCA enhancement, because there were no facts showing

that Bradley intended to sell or distribute the marijuana in his possession. Second,

he argues that the district court erred in determining his base offense level and

criminal history category based on a finding that he possessed guns “in connection

with a drug offense,” as defined in U.S.S.G. § 4B1.4(b)(3)(A) and (c)(2), because

the evidence was insufficient to show that the drugs found at his residence were for

distribution. Third, he contends that his constitutional rights were violated because

the allegation that he possessed two guns “in connection with a drug offense”

under § 4B1.4 was never proven beyond a reasonable doubt to a jury, as required

by Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151, 2158 (2013).

I.     The ACCA Enhancement

       Where a defendant raises a sentencing argument for the first time on appeal,

we review for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th

Cir. 2000) (per curiam). The plain error standard requires the defendant to show

“(1) error, (2) that is plain, (3) that affects substantial rights,[ and (4)] that seriously




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affects the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006).

      Under the ACCA, a defendant is subject to a 15-year statutory minimum

sentence if he violated 18 U.S.C. § 922(g) and has three previous convictions for a

violent felony, serious drug offense, or both, committed on different occasions. 18

U.S.C. § 924(e)(1). A “serious drug offense” includes “an offense under State law,

involving . . . 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). Georgia law criminalizes

possession of marijuana with intent to distribute and sets a maximum term of

imprisonment of ten years. O.C.G.A. § 16-13-30(j)(2). “In determining whether a

particular offense is a serious drug offense under the ACCA, sentencing courts

[generally] adopt a categorical approach, looking only to the statutory definition of

the crime charged, rather than the actual facts of the . . . prior conviction.” United

States v. James, 430 F.3d 1150, 1154 (11th Cir. 2005). A district court may look

to the facts underlying a prior conviction “where the judgment of conviction and

statute are ambiguous, i.e., the determination whether a prior conviction is a

qualifying offense from the face of the judgment itself is impossible.” United

States v. Aguilar-Ortiz, 450 F.3d 1271, 1273 (11th Cir. 2006). “In addition, failure

to object to allegations of fact in a [Presentence Investigation Report (PSI)] admits


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those facts for sentencing purposes.” United States v. Wade, 458 F.3d 1273, 1277

(11th Cir. 2006).

      Here, Bradley did not object to the presentence investigation report’s (PSI)

finding that he was convicted in Georgia state court of possession with intent to

distribute marijuana. Consequently, this means he admitted that fact for sentencing

purposes. Id. His argument that no facts show he intended to sell or distribute

marijuana is without merit because his 2004 drug conviction was not ambiguous in

terms of whether it was an ACCA qualifying offense, so the district court could not

look at the facts underlying the conviction. Aguilar-Ortiz, 450 F.3d at 1273.

Although the Georgia statute is broader than the ACCA definition of “serious drug

offense” as the Georgia statute prohibits both possession of marijuana and

possession with intent to distribute marijuana, there is no dispute that Bradley was

convicted specifically of “possession with intent to distribute marijuana.” See

O.C.G.A. § 16-13-30(j). Therefore, the district court did not err, plainly or

otherwise, in concluding the conviction qualified as a “serious drug offense” under

the ACCA. James, 430 F.3d at 1154; 18 U.S.C. § 924(e)(2)(A)(ii).

II.   Possession of Guns “In Connection With” a Drug Offense

      Where a defendant raises a sentencing argument for the first time on appeal,

we review for plain error. Aguillard, 217 F.3d at 1320. In reviewing the

reasonableness of a sentence, we first ensure that the district court committed no


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significant procedural error, meaning the district court, inter alia, properly

calculated the Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). A defendant is subject to the Sentencing Guidelines

enhancements in § 4B1.4(b)(3)(A) (providing for a base offense level of 34) and

(c)(2) (providing for a criminal history category of VI) if he possesses a firearm in

connection with either a crime of violence or a “controlled substance offense,”

which the Guidelines define as “an offense . . . that prohibits the manufacture,

import, export, distribution, or dispensing of a controlled substance . . . or the

possession of a controlled substance . . . with intent to manufacture, import, export,

distribute, or dispense.” U.S.S.G. § 4B1.2(b).

      We have given expansive construction to § 4B1.4(b)(3)(A)’s phrase “in

connection with” and rejected the holding of other circuits that the “in connection

with” language is only satisfied where the gun serves a purpose related to the

crime. United States v. Young, 115 F.3d 834, 838 (11th Cir. 1997) (per curiam).

We have found the application of the § 4B1.4(b)(3)(A) provision appropriate

where a defendant was arrested while simultaneously possessing heroin and a gun,

because “the presence of the gun potentially emboldened [the defendant] to

undertake illicit drug sales.” United States v. Gainey, 111 F.3d 834, 837 (11th Cir.

1997).




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      We have also held that § 4B1.4(b)(3)(A) can apply in the case of a crime of

violence committed in connection with a firearm possession regardless of whether

the crime of violence led to a conviction. United States v. Mellerson, 145 F.3d

1255, 1257–58 (11th Cir. 1998) (per curiam). Section 4B1.4(b)(3)(A) applies as

long as the government proves by a preponderance of the evidence that a crime of

violence was committed in connection with the firearm possession. Id. We

explained that:

      Section 4B1.4(b)(3)(A) states that 34 is the proper offense level “if the
      defendant used or possessed the firearm . . . in connection with a
      crime of violence.” The language includes no mention of a
      conviction. By contrast, the language of § 4B1.1, the section that
      defines a career offender, specifically requires that a defendant have
      “at least two prior felony convictions of either a crime of violence or a
      controlled substance offense.” (emphasis added). The difference
      between the two sections indicates that the Sentencing Commission
      knew how to make a conviction the prerequisite for application of a
      provision.

Id. at 1258. This is the same section providing that 34 is the proper offense level if

the defendant used or possessed the firearm in connection with a controlled

substance offense. U.S.S.G. § 4B1.4(b)(3)(A).

      In light of our expansive interpretation of the phrase “in connection with,”

for purposes of determining whether a defendant possessed a gun in connection

with a controlled substance offense, Bradley has not shown that the district court

erred in that determination. His failure to object to the statement in the PSI that he

“was distributing illegal drugs from his residence in Valdosta,” admits that fact for
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sentencing purposes. Wade, 458 F.3d at 1277. He also failed to object to the

following PSI findings, thus admitting the facts for sentencing purposes: agents

obtained a search warrant after a cooperating source made a controlled buy of

crack cocaine from Bradley; agents found drug paraphernalia throughout Bradley’s

house, including digital scales and plastic baggies; agents found a steel screen door

at the back of the home with the center section cut from it, a common practice of

drug dealers; and, while the police were inventorying the house, two people called

a cell phone found in the house and attempted to buy drugs. See id. The

government proved by a preponderance of the evidence that Bradley possessed the

guns in connection with a controlled substance offense, so § 4B1.4(b)(3)(A)

applies even though he was not convicted of a controlled substance offense. See

Mellerson, 145 F.3d at 1257–58. Mellerson specifically addressed

§ 4B1.4(b)(3)(A) in the context of the use or possession of a firearm in connection

with a crime of violence. Id. However, it follows that the same reasoning applies

to the possession of a firearm in connection with a controlled substance offense

because the relevant Guidelines section applies to armed career criminals who

possessed a firearm in connection with either a crime of violence or a controlled

substance offense. U.S.S.G. § 4B1.4(b)(3)(A). Further, the district court did not

err, plainly or otherwise, in concluding that Bradley possessed the guns in




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connection with a controlled substance offense, even if the guns did not serve a

purpose related to the controlled substance offense. See Young, 115 F.3d at 838.

III.   Allegation of Possessing Guns “In Connection With” a Drug Offense
       Never Submitted to Jury

       We review sentencing objections based on Alleyne v. United States or its

direct predecessors that were not preserved before the district court for plain error.

United States v. McKinley, 732 F.3d 1291, 1295–96 (11th Cir. 2013) (per curiam).

“[A]ny fact that increases the mandatory minimum [sentence for a crime] is an

element [of the crime] that must be submitted to the jury.” Alleyne, 570 U.S. at __,

133 S. Ct. at 2155. However, the Alleyne holding “does not mean that any fact that

influences judicial discretion must be found by a jury.” Id. at __, 133 S. Ct.

at 2163. The fact of prior convictions is not an “element” of the crime that must be

submitted to the jury. See Almendarez-Torres v. United States, 523 U.S. 224, 226–

27, 118 S. Ct. 1219, 1222 (1998).

       The court’s finding that Bradley possessed two guns in connection with a

drug offense increased his Sentencing Guidelines range, not his mandatory

minimum sentence. U.S.S.G. § 4B1.4(b)(3)(A) and (c)(2). Therefore, it was not a

finding that needed to be made by a jury. Alleyne, 570 U.S. at __, 133 S. Ct.

at 2163. To the extent Bradley may be arguing that his 15-year minimum sentence

under the ACCA is unconstitutional, that mandatory minimum sentence was based

on his prior convictions and, therefore, did not need to be submitted to a jury.
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Almendarez-Torres, 523 U.S. at 226–27, 118 S. Ct. at 1222. Accordingly, the

district court did not err, plainly or otherwise, in applying the ACCA 15-year

minimum sentence to Bradley, even though the allegation that he possessed two

guns “in connection with a drug offense” was never submitted to a jury.

      AFFIRMED.




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