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                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-11809
                               ________________________

                      D.C. Docket No. 8:15-cr-00476-EAK-JSS-1


UNITED STATES OF AMERICA,

                                                                          Plaintiff - Appellee,

                                             versus

ERNEST L. CHAMBLISS,

                                                                      Defendant - Appellant.

                               ________________________

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

                                     (February 27, 2019)

Before ED CARNES, Chief Judge, MARTIN, and ROGERS, * Circuit Judges.

PER CURIAM:



       *
         Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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      Ernest Chambliss, a federal prisoner serving a 262-month sentence, appeals

his conviction and sentence for possessing a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g). Among other things, Chambliss here challenges

the district court’s decisions to deny his request for an entrapment instruction and

to classify him as an armed career criminal under the Armed Career Criminal Act

(“ACCA”). After careful consideration and with the benefit of oral argument, we

affirm.

                                          I.

      One day in mid-April 2015, Chambliss and his friend, Stuart Rucker, were

busy moving some of Chambliss’s belongings out of Rucker’s closet. Chambliss

had recently reconciled with his girlfriend and was in the process of retrieving his

things. As the two friends moved items out of the closet and into Chambliss’s

truck, Chambliss asked Rucker to grab a camouflage hat lying on one of the closet

shelves but to “be careful” while doing so. Rucker did as he was asked and

quickly discovered why Chambliss had warned him to be careful: nestled within

the hat was a black handgun.

      As a convicted felon himself, Rucker immediately told Chambliss that he

didn’t want anything to do with the gun, rewrapped the gun inside the hat, and tried

to hand it back. Chambliss, however, refused to take the gun and instead asked

Rucker to hold onto it until Chambliss could come by later to retrieve it. Rucker


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repeated that he didn’t want the gun in his house but reluctantly agreed to

Chambliss’s request and put the gun back in the closet.

      Around the same time, a confidential informant named Randy Hammond

caught wind from a mutual acquaintance of his and Chambliss’s that Chambliss

was looking to sell a gun. Hammond frequently bought drugs from Chambliss, so

the two men were well-acquainted. Hammond flagged the potential gun sale to his

handler, Detective Scott Huber, who notified Special Agent Konstantinos Balos.

Detective Huber and Agent Balos hatched a plan for Hammond to purchase the

handgun from Chambliss along with the usual drugs, so as not to arouse suspicion.

Although the officers briefly considered using an undercover officer to complete

the purchase, they decided to use Hammond because of his relationship with

Chambliss. The officers paid Hammond $600 for his assistance.

      The operation took place on April 16, 2015. In preparation, the officers

outfitted Hammond with an audio video recording device, checked him for

contraband, and handed him enough money to purchase the gun and two pills.

Hammond then rode his bike over to Chambliss’s house, where he paid Chambliss

for the contraband. Shortly after that, Chambliss called Rucker and asked him to

bring the gun over. The audio recording device captured Chambliss’s side of the

conversation in full:

      Hey, Hey, Hey, remember that, that little thing I put in your clothes?
      Bring that with you when you come. That thing you got. That black
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      thing in your clothes. (inaudible) Yeah, the, the, the, the pea shooter.
      Remember? It’s the black thing. Yeah, you was. Yeah. The gun man,
      the gun man, the gun. Yes, do it, bye.

Because Rucker had trouble remembering what Chambliss was talking about, he

went to ask Chambliss in person. After clarifying that Chambliss wanted him to

“bring the gun over,” Rucker went back home, grabbed the camouflage hat with

the gun inside, placed both items inside a cooler, and drove the cooler over to

Chambliss’s house. Chambliss then told Hammond to get the gun from the

kitchen. Hammond opened the cooler in the kitchen, checked to make sure the gun

was inside, and took everything back with him to Agent Balos and Detective

Huber.

      A second operation took place on April 22, 2015. This time, Hammond was

tasked with purchasing ammunition from Chambliss, who agreed to help

Hammond “get some” bullets for the gun. Half a year later, a federal grand jury

indicted Chambliss on one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Officers also arrested and charged Rucker with

the same crime for possessing Chambliss’s gun.

      Chambliss decided to go to trial and filed a motion in limine to exclude

evidence of his drug dealing activities as inadmissible extrinsic evidence of a crime

and as unfairly prejudicial evidence. The district court denied the motion,

concluding that the evidence was “necessary to complete the [government’s] story


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of the crime,” and advised Chambliss that he could request a limiting instruction if

he wished to reduce the risk of prejudice. Chambliss never made that request.

       Trial began on November 28, 2016 and lasted five days. Chambliss twice

moved for a judgment of acquittal, which the district court denied. Chambliss also

unsuccessfully requested an entrapment instruction. On December 2, the jury

found Chambliss guilty of possessing a firearm as a convicted felon. A few days

later, Chambliss filed a motion for a new trial, arguing that the district court erred

when it denied his motion in limine and refused to give an entrapment instruction

and that the government failed to timely disclose Hammond’s suitability

assessment as a confidential informant. The district court denied the motion.

       At sentencing, the probation officer and government relied on four of

Chambliss’s prior state convictions to treat him as an armed career criminal under

ACCA: (1) selling or delivering cocaine on November 6, 1997; (2) possessing

cocaine with intent, manufacturing of a controlled substance, and selling or

delivering cocaine on November 7, 1997; (3) selling or delivering cocaine on

December 14, 1998; 1 and (4) resisting an officer with violence on December 11,

1998. Chambliss objected to being characterized as an armed career criminal,

saying that the first and second convictions arose from one continuing drug offense


       1
          Although the presentence investigation report states that Chambliss pled nolo contendre
to possession of cocaine and sale or delivery of cocaine on September 28, 1998, the record
reflects that the offense took place on December 14, 1998.
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and therefore could not count as two separate offenses for purposes of sentencing

under ACCA. He also argued that two of his convictions were only for the “sale

and delivery” of cocaine as opposed to manufacture or distribution, which meant

they did not qualify as serious drug offenses. Last, he contended that his

conviction in Florida for resisting an officer with violence could not categorically

qualify as a violent offense within the meaning of ACCA’s elements clause.

      The district court rejected Chambliss’s arguments, ruled that Chambliss is an

armed career criminal, and sentenced him to 262 months imprisonment.

Chambliss timely appealed.

                                         II.

      Chambliss raises four issues on appeal. First, he argues the government did

not introduce sufficient evidence that he actually or constructively possessed the

firearm sold. Second, he argues the district court erred when it denied his request

to give the jury an entrapment instruction. Third, he argues the district court

abused its discretion when it denied his motion for a new trial. Last, he argues the

district court erred when it applied the ACCA enhancement for sentencing

purposes. We address each argument in turn.

                                         A.

      We review de novo whether a verdict is supported by sufficient evidence,

United States v. Brantley, 803 F.3d 1265, 1270 (11th Cir. 2015), “view[ing] the


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evidence in the light most favorable to the Government and resolv[ing] all

reasonable inferences and credibility evaluations in favor of the verdict.” United

States v. Isnadin, 742 F.3d 1278, 1303 (11th Cir. 2014). “Evidence is sufficient to

support a conviction if a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.” Isnadin, 742 F.3d at 1303 (quotation

marks omitted).

      Here, a reasonable juror could have found beyond a reasonable doubt that

Chambliss constructively possessed a gun. As the government points out in its

brief, Chambliss was heard on tape ordering Rucker to bring the gun over so he

could sell it to Hammond. That same recording also captured Chambliss urging

Rucker to remember “that little thing [the gun] I put in your clothes.” A

reasonable juror could find from this that Chambliss was not only aware of the

firearm’s existence but also had the ability and intent to control it, which is enough

to show constructive possession. See United States v. Perez, 661 F.3d 568, 576

(11th Cir. 2011) (per curiam); see also United States v. Gunn, 369 F.3d 1229, 1235

(11th Cir. 2004) (per curiam). Chambliss does not dispute that he was a convicted

felon at the time of possession or that the gun traveled in interstate commerce. As

a result, there was sufficient evidence to support his conviction under 18 U.S.C.

§ 922(g)(1).




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                                         B.

      Chambliss’s argument that the district court erred when it denied his request

to give the jury an entrapment instruction is similarly without merit. As this Court

recently clarified in United States v. Dixon, 901 F.3d 1322 (11th Cir. 2018), we

review de novo a district court’s decision not to instruct the jury on entrapment.

Id. at 1346–47. “Whether a defendant is entitled to an entrapment instruction

depends on whether there is sufficient evidence from which a reasonable jury

could find entrapment.” Id. at 1347 (quotation marks and emphasis omitted).

      To receive an entrapment instruction, Chambliss had to put forth some

evidence—“more than a scintilla”—that the government both induced the crime

and that Chambliss was not predisposed to commit the crime. United States v.

Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002) (per curiam) (quotation marks

omitted). Chambliss argues that he met this burden because there was no evidence

suggesting that he was “in the business of selling firearms.” This argument

misapprehends the nature of Chambliss’s conviction. Even if the government,

through Hammond, induced Chambliss to sell the firearm, Chambliss was

convicted for possessing the firearm—not selling it. See Dixon, 901 F.3d at 1347.

Chambliss has offered no evidence to show that the government induced him to

possess the gun in the first place. In addition, Hammond testified that he only

approached his handler after he caught wind that Chambliss was looking to sell a


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gun he presumably already owned. This strongly suggests that Chambliss’s

possession of the gun predated any governmental involvement in the case, so he

could not have been induced. As a result, the district court did not err when it

denied Chambliss’s request for an entrapment instruction.

                                          C.

      Chambliss next argues the district court erred when it denied his motion for

a new trial. We review a district court’s denial of a motion for a new trial for

abuse of discretion. United States v. Scrushy, 721 F.3d 1288, 1303 (11th Cir.

2013). Chambliss advances three grounds for error: first, the district court failed to

give an entrapment instruction; second, the district court should have granted his

motion in limine to exclude evidence of his drug dealing activities; and third, the

government failed to disclose Hammond’s suitability assessment as a confidential

informant before trial, which hampered trial counsel’s ability to impeach

Hammond at trial. All fail to persuade.

      As discussed in the previous section, the district court did not err in denying

Chambliss’s request for an entrapment instruction. The court therefore could not

have abused its discretion in declining to grant his motion for a new trial on that

basis. The other two arguments fare little better.

      Although Chambliss frames the second ground for finding error as whether

the district court erred when it denied his motion for a new trial, the core of his


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argument is that the court erred in denying his motion in limine—a determination

we also review for abuse of discretion. See United States v. Thompson, 25 F.3d

1558, 1563 (11th Cir. 1994). Here, it’s clear the district court did not abuse its

discretion in denying Chambliss’s motion in limine request to exclude evidence of

his drug dealing activities at trial.

       As the district court correctly recognized, Chambliss’s drug dealing

activities were part and parcel of the transaction involving the gun and therefore

did not qualify as inadmissible extrinsic evidence of a crime under Federal Rule of

Evidence 404(b). See United States v. Nerey, 877 F.3d 956, 974 (11th Cir. 2017)

(explaining Rule 404(b) does not apply to evidence that is “(1) part of the same

transaction or series of transactions as the charged offense, (2) necessary to

complete the story of the crime, or (3) inextricably intertwined with the evidence

regarding the charged offense”). The evidence explained Hammond’s preexisting

relationship with Chambliss as well as the reason why the officers decided to rely

on Hammond for the operation rather than an undercover officer. This is plainly

intrinsic evidence that does not fall within the ambit of Rule 404(b). See United

States v. McLean, 138 F.3d 1398, 1403–04 (11th Cir. 1998).

       Neither was the probative value of the drug sales evidence substantially

outweighed by the risk of unfair prejudice to Chambliss, such that the evidence

should have been excluded under Federal Rule of Evidence 403. Not only did


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Chambliss decline the district court’s offer to give a limiting instruction on the

drug evidence to reduce the risk of prejudice at trial, counsel for Chambliss

explicitly mentioned Chambliss’s drug-dealing activities during closing argument

to argue Chambliss’s innocence. Trial counsel argued to the jury that Rucker was

the one who actually owned the gun and that he let Chambliss take the money

because Rucker owed Chambliss money for drugs. Chambliss cannot on the one

hand claim the evidence ran an unacceptably high risk of prejudicing him at trial,

while at the same time relying on that same evidence as a central part of his theory

for acquittal. See United States v. Sophie, 900 F.2d 1064, 1075 (7th Cir. 1990)

(persuasive authority). Because the district court did not abuse its discretion when

it denied his motion in limine, it did not err when it denied his motion for a new

trial on the same grounds.

      As for Chambliss’s third argument—that the government did not timely

disclose Hammond’s suitability assessment in advance of trial—we discern no

error in the district court’s decision to deny him a motion for a new trial on that

ground. To the extent this is a claim made pursuant to Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194 (1963), it fails. “To establish a Brady violation, the

defendant must show that (1) the government possessed favorable evidence to the

defendant; (2) the defendant does not possess the evidence and could not obtain the

evidence with any reasonable diligence; (3) the prosecution suppressed the


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favorable evidence; and (4) had the evidence been disclosed to the defendant, there

is a reasonable probability that the outcome would have been different.” United

States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002).

      Chambliss does not attempt to argue that the pre-trial disclosure of the

suitability assessment might have impacted the outcome. To the contrary, he

concedes that he was able to cross-examine Hammond based on the suitability

assessment. Although the government did not furnish Chambliss with a copy of

the suitability assessment before trial, the government did provide notice of much

of the impeachment information in it through pre-trial communications with

Chambliss’s attorney. The district court therefore did not err when it denied

Chambliss’s motion for a new trial on this basis.

                                               D.

      Chambliss’s final argument on appeal is that the district court erred when it

classified him as an armed career criminal under ACCA. He contends that because

two of his three state drug offenses “happened in the same 24-hour span and at the

same location,” they should have been counted as one offense for ACCA

enhancement purposes. Alternatively, he argues that the Shepard 2 documents for




      2
          Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).


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two of his drug convictions fail to show he was convicted of a qualifying drug

offense under ACCA. 3

       We review de novo whether a defendant’s prior conviction qualifies as a

violent felony or serious drug offense under ACCA and whether a defendant’s

prior offenses occurred on separate occasions within the meaning of ACCA. See

United States v. Proch, 637 F.3d 1262, 1265 (11th Cir. 2011); United States v.

Canty, 570 F.3d 1251, 1254–55 (11th Cir. 2009). We conclude the district court

correctly applied the ACCA enhancement to Chambliss.

       ACCA imposes a fifteen-year mandatory minimum sentence on people

convicted under 18 U.S.C. § 922(g)(1) if they have “three previous convictions by

any court . . . for a violent felony or a serious drug offense, or both, committed on

occasions different from one another.” 18 U.S.C. § 924(e)(1). The government,

however, relied on four convictions to trigger the ACCA enhancement: (1) selling

or delivering cocaine on November 6, 1997; (2) possessing cocaine with intent,

manufacturing of a controlled substance, and selling or delivering cocaine on

November 7, 1997; (3) selling or delivering cocaine on December 14, 1998; and

(4) resisting an officer with violence on December 11, 1998. Chambliss cannot




       3
          Chambliss additionally argues that his conviction for resisting an officer with violence
under Fla. Stat. § 843.01 does not categorically constitute a violent felony. Because it is clear
the district court correctly counted and relied on his three state drug offenses to apply the ACCA
enhancement, we need not address this argument.
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prevail on appeal unless he shows the district court erroneously relied on two of

these convictions to support the ACCA enhancement. This he cannot do.

      To begin, Chambliss’s convictions for selling cocaine on November 6 and

November 7 were properly counted as two offenses because they “arose out of . . .

separate and distinct criminal episode[s].” United States v. Sneed, 600 F.3d 1326,

1329 (11th Cir. 2010) (quotation marks omitted). As this Court has said, “[t]wo

offenses are distinct if some temporal break occurs between them.” Id. at 1330.

Here, the offenses were committed on different days, and the Shepard documents

reflect that Chambliss engaged in different behavior on each occasion. On

November 6, Chambliss unlawfully sold or delivered cocaine. The next day, he

also manufactured and possessed it. The district court therefore did not err when it

chose to count Chambliss’s November 6 and November 7 offenses separately

under ACCA.

      It is likewise clear that Chambliss’s November 6, 1997 and December 14,

1998 drug offenses count as serious drug offenses within the meaning of ACCA.

The Shepard documents reveal that Chambliss was convicted of the “sale or

delivery of cocaine” on both occasions in violation of Fla. Stat. § 893.13(1)(a).

Both convictions were second degree felonies, which means Chambliss was

convicted under Fla. Stat. § 893.13(1)(a)(1). Sale of cocaine with intent to

distribute under Fla. Stat. § 893.13(1)(a)(1) qualifies as a serious drug offense


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under ACCA. United States v. Smith, 775 F.3d 1262, 1264–65, 1268 (11th Cir.

2014). The district court therefore did not err when it counted both offenses before

applying the ACCA enhancement.

      Because Chambliss’s three serious drug offenses are enough to qualify him

as an armed career criminal under ACCA, see 18 U.S.C. § 924(e)(1), the district

court did not err in applying the enhancement and sentencing him accordingly.

      AFFIRMED.




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