              Case: 15-15614    Date Filed: 11/18/2016   Page: 1 of 5


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-15614
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 6:15-cr-00052-GAP-DAB-1



UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                      versus

JONATHAN EVERETT JOHNSON,

                                                              Defendant-Appellant.

                           ________________________

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

                               (November 18, 2016)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      In this case, after Johnathan Everett Johnson was indicted for two offenses:

Count One, possession of a firearm after being convicted of a felony, in violation
                 Case: 15-15614       Date Filed: 11/18/2016   Page: 2 of 5


of 18 U.S.C. § 922(g)(1), and Count Two, possession of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1), the Government filed a notice of

maximum penalty indicating that it would seek a sentence enhancement for the

Count One offense under the Armed Career Criminal Act (ACCA), 18 U.S.C. §

924(e). The ACCA provides that if a convicted felon has “three previous

convictions . . . for a violent felony or a serious drug offense, or both,” he faces a

minimum of 15 years’ imprisonment. Id. § 924(e)(1). The Government’s notice

stated that Johnson had a 1994 Florida conviction for armed robbery, a 1999

Florida conviction for selling cocaine, a 2007 federal conviction for bank fraud,

and a 2007 federal conviction for conspiracy to possess with intent to distribute

cocaine and for using and carrying a firearm in relation to a drug trafficking

offense.

      Johnson pled guilty to both counts of the indictment. 1 At sentencing, he

objected to the ACCA enhancement on the ground that the ACCA’s definition of

“serious drug offense,” 18 U.S.C. § 924(e)(2)(A), was unconstitutionally vague

because it relied on the maximum sentence prescribed for a particular drug offense

rather than on the drug quantity or type of drug involved in the offense. Hence, the

District Court erred in treating his 1999 Florida conviction for selling cocaine as a

serious drug offense under the ACCA, a second-degree felony punishable by a


      1
          Johnson pled guilty without a plea agreement.
                                                2
               Case: 15-15614       Date Filed: 11/18/2016     Page: 3 of 5


term of imprisonment of 15 years. He did not dispute, though, that his 1994

conviction for armed robbery and his 2007 conviction for conspiracy to possess

with intent to distribute qualified as predicate convictions for an ACCA

enhancement.

       The District Court overruled Johnson’s objection, concluding that the ACCA

applied, and sentenced him on Count One to a prison term of 15 years. 2 He

appeals the sentence, presenting the same constitutional argument he presented to

the District Court. We affirm.

       The ACCA, in § 924(e)(2)(A)(ii), defines “serious drug offense” as “an

offense under State law, involving manufacturing, distributing, or 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.”

§ 924(e)(2)(A)(ii). In United States v. Rodriquez, in discussing the propriety of

§ 924(e)(2)(A)(ii), the Supreme Court stated that Congress’s choice “to rely on the

‘maximum term of imprisonment . . . prescribed’ by state law as the measure of the

seriousness of state offenses involving the manufacture, distribution, or possession

of illegal drugs” demonstrated that Congress was deferring to state lawmakers’

judgment that an offense punishable by ten years’ imprisonment is sufficiently

“serious.” 553 U.S. 377, 387-88 (2008). Johnson’s 1999 Florida conviction for

       2
         The applicable sentence range under the Sentencing Guidelines was 188 to 235
months’ imprisonment.
                                              3
               Case: 15-15614     Date Filed: 11/18/2016   Page: 4 of 5


selling cocaine was punishable by a maximum sentence of 15 years, see Fla. Stat.

§§ 775.082(3)(d),893.13(1)(a)(1)(1999), and thus, by definition, qualified for

sentence enhancement.

      Johnson argues that although the

      “10 year or greater maximum penalty for a ‘serious drug offense’
      appears to create a bright line rule that should be easy to follow, [it]
      unjustly punishes those based upon the happenstance of where they
      committed their offense(s) and the 10 years is not linked in any way to
      the circumstances of the offense or the quantity of the drug involved
      in the crime. In its essence, this law creates what could be called a
      reverse vagueness problem and is overly broad.”

Appellant’s Br. at 10. In short, Johnson argues that his sentence should be set

aside because, depending on the circumstances surrounding the prior drug

conviction, the definition fails to provide a person with adequate notice that the

conviction could be used to enhance a sentence under the ACCA. Put another

way, no ordinary, reasonable person reading the statutory words, “serious drug

offense,” would understand precisely what conduct constitutes such offense

especially since the drug-related conduct that might invoke a sentence of 10 years

or greater varies from state to state.

      The Fifth Amendment provides that “no person shall . . . be deprived of life,

liberty, or property, without due process of law.” U.S. Const. amend. V. Due

process encompasses the concepts of notice and fair warning. At its core, “the . . .

principle is that no man shall be held criminally responsible for conduct which he


                                          4
                Case: 15-15614      Date Filed: 11/18/2016      Page: 5 of 5


could not reasonably understand to be proscribed.” United States v. Lanier, 520

U.S. 259, 265, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997) (quoting Bouie v.

City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964)).

Bankshot Billiards, Inc. v. City of Ocala, 634 F.3d 1340, 1349 (11th Cir. 2011).

       Vagueness, the sine qua non of Johnson argument, “is a “related

manifestation[ ] of the fair warning requirement.” Lanier, at 266, 117 S. Ct. at

1225. The question here is whether the ACCA, read as whole, gave Johnson fair

notice---at the time he committed the Count One § 922(g)(1) offense---that his

1999 Florida cocaine conviction would qualify as a “serious drug offense” and,

coupled with his other previous offenses, would likely subject him to an enhanced

sentence.

       We conclude that the challenged definition gave Johnson the fair notice due

process required, that the 1999 Florida conviction was a serious drug offense. The

conviction fell clearly within the definition. We do not determine whether or not

treating some other drug conviction from Florida or another state as a “serious drug

conviction” would deny an accused due process. Our focus is only on this case

and a specific Florida conviction.

       AFFIRMED. 3



       3
         Johnson’s brief raises constitutional issues not presented to the District Court. We
consider them abandoned. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
                                              5
