                                                       [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 11-13915         ELEVENTH CIRCUIT
                                                    MARCH 1, 2012
                        Non-Argument Calendar
                      ________________________        JOHN LEY
                                                       CLERK

                  D.C. Docket No. 3:11-cr-00037-LC-3

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus



TERRENCE L. WATSON,

                                                        Defendant-Appellant.


                    __________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     _________________________

                            (March 1, 2012)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
      Terrence Watson appeals from his sentence of life imprisonment after pleading

guilty to conspiracy to distribute and possess with intent to distribute five or more

kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846.

He argues that: (1) because his 2002 Florida conviction for possession of a controlled

substance was deemed unconstitutional in a recent decision in the Middle District of

Florida, the conviction cannot be used to enhance his sentence; and (2) the five-year

statute of limitations for challenging predicate convictions, used to enhance a

sentence under § 841, should not bar his claim. After careful review, we affirm.

      We review de novo a district court’s decision applying a sentencing

enhancement that results in a life sentence. See United States v. Mazarky, 499 F.3d

1246, 1248 (11th Cir. 2007) (reviewing the legality of a sentence de novo).

      Section 841(b)(1)(A) provides that a defendant convicted under that section

who previously has been convicted of two or more felony drug offenses shall be

sentenced to life imprisonment. 21 U.S.C. § 841(b)(1)(A). After the government

files an information pursuant to 21 U.S.C. § 851 identifying the prior convictions

relied upon to support the 21 U.S.C. § 841(b)(1)(A) enhancement, the defendant may

deny a conviction or claim that a conviction is invalid by filing a written response.

21 U.S.C. § 851(a), (c). “[T]he United States attorney shall have the burden of proof

beyond a reasonable doubt on any issue of fact.” 21 U.S.C. § 851(c)(1). The

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defendant “shall have the burden of proof by a preponderance of the evidence on any

issue of fact raised by the response.” 21 U.S.C. § 851(c)(2). However, a defendant

cannot challenge the validity of a prior conviction that occurred more than five years

before the date that the 21 U.S.C. § 851 information was filed. 21 U.S.C. § 851(e).

      As a general rule, we do not allow a defendant to collaterally attack prior

convictions being used to enhance his sentence in the sentencing proceeding. United

States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995) (concerning challenge to

enhancement under Armed Career Criminal Act (“ACCA”)). However, in United

States v. Roman, 989 F.2d 1117 (11th Cir. 1993) (en banc), we held that if the

defendant adduces evidence sufficient to demonstrate that the conviction used to

enhance his sentence is “presumptively void,” the Constitution requires the

sentencing court to review the earlier conviction before taking it into account. Id. at

1119-20. We have suggested that presumptively void cases “are small in number and

are perhaps limited to uncounseled convictions.” Id. at 1120. If the prior conviction

is not “presumptively void,” review must be through habeas corpus proceedings. Id.

The defendant has the burden of proving that a prior conviction is constitutionally

invalid. United States v. Cooper, 203 F.3d 1279, 1287 (11th Cir. 2000); 21 U.S.C.

§ 851(c)(2).




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      When we determine whether a state conviction qualifies as a predicate drug

offense for enhancement purposes, we are bound by a state’s supreme court precedent

when interpreting state law, including its determination of the elements of the statute

at issue. Johnson v. United States, 559 U.S. ___, 130 S.Ct. 1265, 1269 (2010)

(concerning challenge under ACCA enhancement). If the state supreme court has not

definitively determined a point of state law, we are bound to adhere to decisions of

the state’s intermediate courts, absent some indication that the state supreme court

would hold otherwise. Williams v. Singletary, 78 F.3d 1510, 1515 (11th Cir. 1996)

(§ 2254 case).

      In this case, Watson’s challenge fails because he did not challenge the validity

of his prior state conviction for a violation of Fla. Stat. § 893.13 within the required

five-year time period. He first challenged his 2002 conviction in 2011, over four

years after the statute of limitations had run in 2007. See 21 U.S.C. § 851(e). Section

851(e) does not provide for any exceptions to the five-year statute of limitations, and

Watson offers no authority for the proposition that the limitations period does not

apply if the statute underlying a prior conviction is declared unconstitutional years

after the statute of limitations has run. Moreover, we have upheld the validity of the

statute of limitations in § 851(e), stating that the five year limitation period is




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“reasonably tailored to impose enhanced sentences on recidivists.” United States v.

Williams, 954 F.2d 668, 673 (11th Cir. 1992).

      In any event, even if Watson’s challenge was timely, the district court did not

err in sentencing Watson to an enhanced sentence of life imprisonment because

Watson has not shown that his prior conviction is presumptively void. Roman, 989

F.2d at 1119-20. In making this determination, we are bound to follow Florida state

court interpretations of Florida state law. Johnson, 130 S.Ct. at 1269. Florida courts

have interpreted the statute at issue to be a constitutional general intent statute. See

Wright v. State, 920 So.2d 21, 24 (Fla. 4th DCA 2005); see also Miller v. State, 35

So.3d 162, 163 (Fla. 4th DCA 2010); Lamore v. State, 983 So.2d 665, 669 (Fla. 5th

DCA 2008). Therefore, the recent federal district court holding in Shelton v. Sec’y

Dep’t of Corrs., 802 F.Supp.2d 1289 (M.D. Fla. 2011) -- that the Florida statute

underlying one of Watson’s convictions used to enhance his sentence is

unconstitutional -- is of no avail. Accordingly, he has not shown that his prior

conviction is presumptively void, and we affirm.

      AFFIRMED.




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