              Case: 19-14628   Date Filed: 06/16/2020   Page: 1 of 5



                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                No. 19-14628
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:19-cr-20273-FAM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

BILL K. KAPRI,
a.k.a. Dieuson Octave,
a.k.a. Kodak Black,

                                                            Defendant-Appellant.

                          ________________________

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

                                (June 16, 2020)

Before JORDAN, JILL PRYOR, and LAGOA, Circuit Judges.

PER CURIAM:
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      Bill Kapri appeals his 46-month sentence for making false written statements

in connection with the acquisition of firearms in violation of 18 U.S.C. § 922(a)(6).

He raises a single issue: whether a withheld adjudication following a nolo

contendere plea constitutes a prior felony conviction for purposes of enhancing a

base offense level under § 2K2.1 of the Sentencing Guidelines. In United States v.

Fernandez, 234 F.3d 1345, 1347 (11th Cir. 2000), we held that it does. We therefore

affirm.

      After Mr. Kapri pled guilty to the charge under § 922(a)(6), the probation

office prepared a presentence investigation report. The report applied a base offense

level of 22 under § 2K2.1(a)(3) because (1) the offense involved semiautomatic

firearms capable of accepting large capacity magazines, and (2) Mr. Kapri

committed the offense after sustaining one felony conviction for a crime of violence.

That felony conviction was for Florida robbery, to which Mr. Kapri pled nolo

contendere and for which adjudication was withheld.

      Mr. Kapri does not dispute that his federal offense involved semi-automatic

firearms capable of accepting large capacity magazines; that the prior Florida

robbery was a felony and a crime of violence; or that he pled nolo contendere to the

robbery and that the Florida court withheld adjudication. He does not raise any

issues of fact. Mr. Kapri’s only argument on appeal is that the prior robbery does

not satisfy § 2K2.1(a)(3) because it was not a “conviction” under Florida law.


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      Our decision in Fernandez governs this case and requires affirmance. There

we were faced with the exact same question: “whether a plea of nolo contendere,

where adjudication has been withheld, qualifies as a conviction for purposes of

U.S.S.G. § 2K2.1(a)(2).” Fernandez, 234 F.3d at 1346. We held that “[t]he answer

[was] ‘yes’.” Id.

      Mr. Kapri relies on United States v. Clarke, 822 F.3d 1213, 1215 (11th Cir.

2016), a decision in which we vacated a felon-in-possession conviction under 18

U.S.C. § 922(g)(1). The government had argued that the defendant was a convicted

felon because he had pled guilty to possession of cocaine in Florida. See id. at 1214.

Adjudication of the offense had been withheld, however, by the Florida court. See

id. To determine whether that offense was still considered a “conviction” under

§ 922(g)(1), we had to adopt the definition under Florida’s felon-in-possession

statute, Fla. Stat. § 790.23. See id. ((citing United States v. Chubbuck, 252 F.3d

1300, 1304 (11th Cir. 2001)). We certified the question to the Florida Supreme

Court, which answered that the offense did not constitute a conviction. See id.

      Clarke is inapposite. There we recognized that § 922(g) incorporates state

law. See 18 U.S.C. § 921(a)(20) (providing that what constitutes a “conviction” for

“a crime punishable by imprisonment for a term exceeding one year” under § 922(g)

is “determined in accordance with the law of the jurisdiction in which the

proceedings were held”). The Sentencing Guidelines, on the other hand, define


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“conviction” for purposes of determining criminal history and base offense level

under federal law. See Fernandez, 234 F.3d at 1346. See also United States v.

Mejias, 47 F.3d 401, 403 (11th Cir. 1995) (“The meaning of the word ‘conviction’

in a federal statute is a question of federal law unless Congress provides otherwise.”).

      For example, in United States v. Tamayo, 80 F.3d 1514, 1523 (11th Cir. 1996),

we held that what constitutes a conviction for purposes of criminal history under

§ 4A1.1 of the Guidelines is a matter of federal law, rather than state law. And if a

conviction qualifies for criminal history points under § 4A1.1, it is considered a prior

conviction for determining a base level offense under § 2K2.1(a)(3). See U.S.S.G.

2K2.1 cmt. n.10 (“For purposes of applying subsection [(a)(3)], use only those

felony convictions that receive criminal history points under § 4A1.1(a), (b), or

(c).”); U.S.S.G. § 4A1.2(f) (“[A] plea of nolo contendere[ ] in a judicial proceeding

is counted as a sentence under § 4A1.1(c) even if a conviction is not formally

entered.”). See also United States v. Laihben, 167 F.3d 1364, 1366 (11th Cir. 1999).

      We have reaffirmed this principle numerous times, including United States v.

Elliot, 732 F.3d 1307, 1310–13 (11th Cir. 2013). There we held that an Alabama

youthful offender adjudication qualified as a conviction for purposes of classifying

the defendant as a career offender under § 4B1.1 even though it did not qualify as a

conviction under Alabama law.




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      Mr. Kapri nonetheless argues that Clarke and our unpublished decision in

United States v. James, 769 Fed. App’x 833 (11th Cir. 2019), “render or cause the

decision in United States v. Elliot, 732 F.3d 1307 (11th Cir. 2013) to no longer be

the applicable law.” That argument fails on its face. “[W]hen circuit authority is in

conflict, a panel should look to the line of authority containing the earliest case,

because a decision of a prior panel cannot be overturned by a later panel.” Walker

v. Mortham, 158 F.3d 1177, 1188 (11th Cir. 1998). See also United States v. Archer,

531 F.3d 1347, 1352 (11th Cir. 2008) (explaining that under our prior precedent rule,

“a prior panel’s holding is binding on all subsequent panels unless and until it is

overruled or undermined to the point of abrogation by the Supreme Court or by this

court sitting en banc”). In any event, Clarke did not purport to apply beyond

§ 922(g), and for reasons already stated, it has no bearing on our interpretation or

application of the Sentencing Guidelines.

      The district court properly concluded that Mr. Kapri’s Florida robbery, to

which he pled nolo contendere and for which adjudication was withheld, was a

conviction for purposes of enhancing his base offense level under § 2K2.1(a)(3).

      AFFIRMED.




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