             Case: 18-10652    Date Filed: 12/17/2018   Page: 1 of 5


                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-10652
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 8:17-cr-00161-SCB-MAP-1

UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellee,

                                     versus

JAVIS WILSON,

                                                        Defendant - Appellant.

                         _______________________

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

                              (December 17, 2018)

Before TJOFLAT, JORDAN, and BRANCH, Circuit Judges.

PER CURIAM:

     Javis Wilson appeals the enhancement of his sentence under the Armed

Career Criminal Act (“ACCA”) and the Sentencing Guidelines. Because his
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arguments about his sentence either fail or are barred by his valid appeal waiver,

we affirm.

      After Wilson sold firearms to undercover agents of the Bureau of Alcohol,

Tobacco, Firearms and Explosives, he was indicted on three counts of possession

of a firearm by a felon, 18 U.S.C. § 922(g)(1). He agreed to plead guilty to one

count. Wilson’s written plea agreement contained a waiver of his right to appeal.

However, the waiver contained four exceptions, including exceptions for appeals

on the grounds that the sentence exceeds the Guidelines range as determined by the

court, or that the sentence exceeds the statutory maximum.

      At his change-of-plea hearing, the magistrate judge questioned Wilson about

the plea agreement and specifically questioned him about the appeal waiver. When

the magistrate judge asked whether Wilson understood he was limiting his right to

appeal his sentence, Wilson’s reply was later transcribed as “Inaudible.” The

magistrate judge found that Wilson’s guilty plea was knowing and voluntary, and

the district court accepted his guilty plea.

      Under the Guidelines, Wilson’s total offense level was 33 and his criminal

history category was VI, resulting in an advisory sentencing range of 235 to 293

months. Under ACCA, however, § 922(g) offenders with “three previous

convictions . . . for . . . a serious drug offense” are subject to a statutory minimum




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sentence of 15 years. 18 U.S.C. § 924(e)(1). 1 At his sentencing hearing, Wilson

objected to, among other things, the finding of the district court that he had three

ACCA-predicate “serious drug offense” convictions. In particular, he asserted that

his recollection was that one of the three convictions—a 2001 Florida conviction

for delivery of cocaine—had been reduced to a possession charge. He conceded,

however, that he had no evidence to contradict the state court documents the

government was relying upon. The district court overruled the objection, finding

that Wilson had been convicted of delivery of cocaine.

       Wilson also objected to the 4-level enhancement applied for possessing at

least eight firearms, U.S.S.G. § 2K2.1(b)(1)(B), arguing that although he may have

brokered several gun sales, he had only personally supplied three firearms. The

district court overruled that objection and others and imposed a sentence of 220

months. Wilson now appeals, raising two issues about his sentence.

       First, Wilson argues that his 2001 Florida conviction for delivery of cocaine

should not count as an ACCA-predicate “serious drug offense” because “the

judgment reflects no statute of conviction.” Wilson did not raise this particular

issue in the district court, so we review only for plain error.2 United States v.




1
  Without an ACCA designation, Wilson would have faced a statutory maximum sentence of 10
years. 18 U.S.C. § 924(a)(2).
2
  This argument is not barred by Wilson’s appeal waiver, since he is arguing that his sentence
exceeds the statutory maximum to which he maintains he is entitled.
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Jones, 743 F.3d 826, 828 (11th Cir. 2014). We find that Wilson has not established

any error, much less plain error.

      Wilson observes that the document of criminal judgment upon which the

district court relied says he violated “Florida Statutes §893.13 1A (2000),” which

he argues does not exist. In view of the entire record, we do not agree. The district

court also had before it, and was entitled to consider, the charging document for

the offense. See Shepard v. United States, 544 U.S. 13, 16 (2005). That document

lists the statute as “F.S. 893.13(1)(a)” and the charges under that statute, including

“delivery of cocaine,” agree with what the judgment document says. Thus, there is

no real question about the statute of conviction: chapter 893.13(1)(a) of the Florida

Statutes. Under that statute, cocaine delivery offenses are second-degree felonies

subject to up to 15 years’ imprisonment. See Fla. Stat. §§ 893.03(2)(a) &

775.082(3)(d). We have previously held that distribution convictions under this

Florida statute that are punishable by at least 10 years’ imprisonment are ACCA-

predicate “serious drug offenses.” United States v. Smith, 775 F.3d 1262, 1267

(11th Cir. 2014) (citing 18 U.S.C. § 924(e)(2)(A)(ii)). The district court thus did

not err in finding this conviction to be an ACCA predicate.

      Second, Wilson argues that the district court’s finding to support an

enhancement for at least eight firearms under U.S.S.G. § 2K2.1(b)(1)(B) was

clearly erroneous. This argument, unlike his first, is barred by his appeal waiver.


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We review the validity of an appeal waiver de novo. United States v. Bushert, 997

F.2d 1343, 1352 (11th Cir. 1993). At his change-of-plea hearing, Wilson said (or

mumbled) that he understood the terms of the agreement, including its limited

exceptions and its sentencing consequences. Wilson argues that his responses

transcribed as “(Inaudible)” do not indicate understanding. But our precedent on

enforcing appeal waivers requires only that either “(1) the district court specifically

questioned the defendant concerning the sentence appeal waiver during the Rule 11

colloquy, or (2) it is manifestly clear from the record that the defendant otherwise

understood the full significance of the waiver.” Id. at 1351. At the very least, the

former was satisfied here by the magistrate judge’s thorough questioning and

apparent satisfaction with Wilson’s responses. The appeal waiver is valid as to this

issue, and it prevents us from considering it further.

      AFFIRMED.




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