           Case: 16-11297   Date Filed: 10/18/2017   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11297
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:12-cr-60262-KAM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                     versus

DAVID CILLA,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 18, 2017)

Before MARCUS, MARTIN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
              Case: 16-11297     Date Filed: 10/18/2017    Page: 2 of 9


      Defendant David Cilla appeals his 180-month sentence, imposed after

pleading guilty to being a felon in possession of a firearm and ammunition. On

appeal, he challenges the enhancement he received pursuant to the Armed Career

Criminal Act (“ACCA”). The Government argues that Defendant’s appeal is

barred by his sentence-appeal waiver. Because we conclude that Defendant’s

challenge to the ACCA enhancement falls within an exception to his appeal

waiver, we address the merits of his claim. After careful review, we affirm his

180-month sentence.

I.    BACKGROUND

      In October 2012, officers obtained permission from Defendant to search a

freight container located in the backyard of his home. The search uncovered items

that may have been used to grow marijuana. When officers asked to search his

home, Defendant consented and told officers that he had a firearm in the kitchen.

During the search of the home, officers located, among other things, several

firearms, ammunition, a bullet-proof vest, a baggie of marijuana, and a baggie of

cocaine.

      A federal grand jury subsequently charged Defendant with: (1) being a

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)

(“Count 1”); (2) possession with intent to distribute cocaine, in violation of 21

U.S.C § 841(a)(1), (b)(1)(C) (“Count 2”); and (3) possession of a firearm in


                                          2
               Case: 16-11297   Date Filed: 10/18/2017   Page: 3 of 9


furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)

(“Count 3”).

      Defendant later pled guilty to Count 1 pursuant to a written plea agreement

and, in exchange, the Government agreed to dismiss Counts 2 and 3. The plea

agreement stated that Defendant understood the district court must impose a

minimum sentence of 15 years’ imprisonment and may impose a statutory

maximum of life imprisonment. The plea agreement also contained a sentence

appeal waiver, which stated that:

      The defendant is aware that Title 18, United States Code, Section
      3742 and Title 28, United States Code, Section 1291 afford the
      defendant the right to appeal the sentence imposed in this case.
      Acknowledging this, in exchange for the undertakings made by the
      United States in this plea agreement, the defendant hereby waives all
      rights conferred by Sections 3742 and 1291 to appeal any sentence
      imposed, including any restitution order, or to appeal the manner in
      which the sentence was imposed, unless the sentence exceeds the
      maximum permitted by statute or is the result of an upward departure
      and/or an upward variance from the advisory guideline range that the
      Court establishes at sentencing. The defendant further understands
      that nothing in this agreement shall affect the government’s right
      and/or duty to appeal as set forth in Title 18, United States Code,
      Section 3742(b) and Title 28, United States Code, Section 1291.
      However, if the United States appeals the defendant’s sentence
      pursuant to Sections 3742(b) and 1291, the defendant shall be released
      from the above waiver of appellate rights. By signing this agreement,
      the defendant acknowledges that the defendant has discussed the
      appeal waiver set forth in this agreement with the defendant’s
      attorney.




                                         3
              Case: 16-11297     Date Filed: 10/18/2017   Page: 4 of 9


At the change-of-plea hearing, the district court questioned Defendant about the

sentence-appeal waiver and Defendant acknowledged that he was waiving his right

to appeal his sentence.

      In anticipation of sentencing, the probation officer prepared a Presentence

Investigation Report. The PSR assigned Defendant a base offense level of 20,

pursuant to U.S.S.G. § 2K2.1(a)(4)(A) because Defendant committed the instant

offense subsequent to sustaining at least one felony conviction for a controlled

substance offense. Because the probation officer determined that Defendant was

an armed career criminal under U.S.S.G. § 4B1.4(a), Defendant’s offense level was

increased to 33. The armed career criminal designation was based on several

Florida serious drug convictions, including a conviction for delivery of cocaine in

2000, a conviction for possession of cocaine with intent to deliver in 2001, three

convictions for delivery of cocaine in 2008, and one conviction for possession with

intent to deliver cocaine in 2008. With a three-level reduction for acceptance of

responsibility, Defendant’s total offense level was 30.

      Based on a total offense level of 30 and a criminal history category of VI,

Defendant’s guideline range was 168 to 210 months’ imprisonment. However,

because the ACCA enhancement required a mandatory minimum of 15 years’

imprisonment, Defendant’s guideline range became 180 to 210 months’

imprisonment, pursuant to U.S.S.G. § 5G1.1(c)(2).


                                          4
               Case: 16-11297     Date Filed: 10/18/2017    Page: 5 of 9


      The district court sentenced Defendant to the mandatory minimum of 180

months’ imprisonment. Defendant did not file a timely notice of appeal.

Defendant later filed a 28 U.S.C. § 2255 motion, alleging in relevant part that his

trial counsel was ineffective for failing to file a notice of appeal. Following an

evidentiary hearing, the district court granted Defendant’s § 2255 motion as to his

contention that trial counsel had been ineffective for failing to file a notice of

appeal. The district court vacated the sentence for the purpose of re-imposing it to

allow Defendant an opportunity to appeal.

      At the resentencing hearing, Defendant confirmed that he did not have any

objections to the PSR. The district court thereafter re-imposed the 180-month

sentence. This appeal followed.

II.   DISCUSSION

      Defendant argues that his ACCA-enhanced sentence is unconstitutional in

light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551

(2015). The Government counters that we should dismiss Defendant’s appeal

because he waived his right to appeal his sentence. We address the Government’s

argument first, and then turn to the merits of Defendant’s appeal.

      A.     Sentence Appeal Waiver

      Defendant acknowledges that his plea agreement contained a sentence-

appeal waiver, but argues that his Johnson argument falls within the exception to


                                           5
              Case: 16-11297     Date Filed: 10/18/2017   Page: 6 of 9


the appeal waiver that allows him to appeal a sentence in excess of what the law

permits.

      We review the validity of a sentence-appeal waiver de novo. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We will enforce such a waiver

if it was entered into knowingly and voluntarily. United States v. Bushert, 997

F.2d 1343, 1350 (11th Cir. 1993). To establish that a waiver was both knowing

and voluntary, the Government must demonstrate that: (1) the district court

specifically questioned the defendant about the appeal waiver during the plea

colloquy or (2) the record makes clear that the defendant understood the full

significance of the waiver. Id. at 1351.

      Here, Defendant’s sentence-appeal waiver is enforceable because it was

entered into knowingly and voluntarily. The district court specifically questioned

Defendant about the waiver during the plea colloquy. Nevertheless, the appeal

waiver contained three exceptions, one of which provided that Defendant could

appeal his sentence if it exceeded the maximum length permitted by statute. An

appeal waiver does not bar a claim challenging an ACCA enhancement where the

defendant reserved the right to appeal a sentence in excess of the statutory

maximum and the ACCA enhancement increases that maximum. See United

States v. Jones, 743 F.3d 826, 828 n.2 (11th Cir. 2014) (referencing with approval

a prior denial of the Government’s motion to dismiss the defendant’s appeal of the


                                           6
              Case: 16-11297     Date Filed: 10/18/2017   Page: 7 of 9


district court’s application of the ACCA enhancement based on an appeal waiver

that permitted an appeal of a sentence in excess of the statutory maximum). In

Jones, the defendant would have faced a statutory maximum of only 10 years’

imprisonment without the ACCA enhancement, meaning that, if improperly

applied, Defendant’s 15-year sentence under the ACCA was a sentence “in excess

of the statutory maximum” and thus the defendant’s challenge to that enhancement

fell within the exception to the appeal waiver. Id.

      Here, Defendant’s appeal waiver permitted him to appeal a sentence in

excess of the statutory maximum. The statutory maximum sentence for a § 922(g)

offense is 10 years’ imprisonment. See 18 U.S.C. §§ 922(g), 924(a)(2). Defendant

argues on appeal that the district court improperly sentenced him to 15 years’

imprisonment as an armed career criminal and that, as a result, he received a

sentence greater than the law permits. Because Defendant’s 15-year sentence

exceeds the statutory maximum of what the law permits without application of the

ACCA enhancement, Defendant’s challenge falls within the appeal waiver’s

exception for appealing a sentence allegedly in excess of the statutory maximum.

See Jones, 743 F.3d at 828 n.2. Accordingly, we conclude that Defendant’s

argument is not barred by the appeal waiver, and we now turn to the merits of his

appeal.




                                          7
               Case: 16-11297      Date Filed: 10/18/2017    Page: 8 of 9


      B.     ACCA Enhancement

      We review de novo whether a prior conviction qualifies as a predicate

offense under the ACCA. See United States v. Robinson, 583 F.3d 1292, 1294

(11th Cir. 2009) (considering whether a prior conviction was a serious drug offense

under the ACCA). Because Defendant challenges his ACCA enhancement for the

first time on appeal, our review is limited to plain error. See United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error review, we

will reverse where there is “(1) an error (2) that is plain and (3) that has affected

the defendant’s substantial rights; and . . . (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).

      Pursuant to the ACCA, a defendant convicted of being a felon in possession

of a firearm who has 3 or more prior convictions for a serious drug offense or a

violent felony faces a mandatory minimum of 15 years’ imprisonment. See 18

U.S.C. § 922(g)(1), 924(e)(1). The ACCA defines serious drug offense as “an

offense under State law, involving manufacturing, distributing, 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). In Johnson, the Supreme Court held that the residual

clause of the ACCA’s definition of violent felony is unconstitutionally vague. See


                                            8
                Case: 16-11297       Date Filed: 10/18/2017       Page: 9 of 9


Johnson, 135 S. Ct. at 2563. Because that decision addressed only the statute’s

definition of a violent felony, it has no impact on the ACCA’s definition of a

serious drug offense. See generally id.

       Defendant asserts that the district court did not conduct the proper analysis

under Johnson to determine whether his predicate offenses qualified for ACCA

status based on the now-voided residual clause. Defendant’s argument is wholly

without merit, as his designation as an armed career criminal was not based on the

residual clause, but instead upon his having three prior convictions for serious drug

offenses. The PSR—which was not objected to—stated that Defendant qualified

for the ACCA enhancement based upon six prior convictions for either delivery of

cocaine or possession with intent to deliver cocaine, all of which qualify as serious

drug offenses under the ACCA. See United States v. Smith, 775 F.3d 1262, 1268

(11th Cir. 2014) (concluding that a conviction under Fla. Stat. § 893.13(1) for the

sale, delivery, or possession with intent to sell a controlled substance is a serious

drug offense under the ACCA). Because Defendant had at least three prior

convictions constituting serious drug offenses under the ACCA, the district court

did not err by sentencing him as an armed career criminal.1

       Accordingly, Defendant’s sentence is AFFIRMED.

1
  To the extent that Defendant also challenges the district court’s denial of his motion for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782, we do not
address those arguments, as this appeal does not concern the denial of Defendant’s § 3582(c)(2)
motion.
                                               9
