           Case: 17-13022   Date Filed: 04/24/2018   Page: 1 of 7


                                                     [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13022
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:16-cr-00230-GKS-KRS-1



     UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

     MARIO DONATE LOCKHART,


                                                     Defendant-Appellant.

                       ________________________

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

                              (April 24, 2018)

Before MARTIN, NEWSOM, and FAY, Circuit Judges.

PER CURIAM:
                  Case: 17-13022       Date Filed: 04/24/2018   Page: 2 of 7


         Mario Donate Lockhart appeals his 180-month sentence for being a felon in

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

Lockhart raises three issues on appeal. First, he argues that the district court

procedurally erred by failing to elicit objections at the conclusion of sentencing in

violation of United States v. Jones.1 Second, he contends that the district court

violated Federal Rule of Criminal Procedure 32(i)(3) by (a) not fully resolving his

objections during sentencing, (b) not specifying which convictions it relied on to

determine that he qualified as an armed career criminal under the Armed Career

Criminal Act (“ACCA”), and (c) not specifying whether those convictions were

proven using Shepard 2 documents. Third, he asserts that the district court erred in

concluding that he was an armed career criminal because (a) a conviction under

Fla. Stat. § 843.01 for resisting a police officer with violence is not a “violent

felony” under the ACCA, (b) a conviction under Fla. Stat. § 893.13 for delivering

cocaine or possessing cocaine with the intent to deliver it is not a “serious drug

offense” under the ACCA, and (c) the government failed to prove that he had three

ACCA-qualifying convictions for offenses committed on separate occasions. After

careful review, we affirm.




1
 United States v. Jones, 899 F.2d 1097 (11th Cir. 1990) (overruled on other grounds by United
States v. Morrill, 984 F.2d 1136 (11th Cir. 1993)).
2
    Shepard v. United States, 544 U.S. 13 (2005).

                                                    2
                   Case: 17-13022       Date Filed: 04/24/2018       Page: 3 of 7


                                                  I


          On appeal, Lockhart asserts―and the government agrees―that the district

court procedurally erred by failing to elicit objections at the conclusion of

sentencing in violation of United States v. Jones.3 Under Jones, the district court

must “elicit fully articulated objections, following imposition of sentence, to the

court’s ultimate findings of fact and conclusions of law.” Jones, 899 F.2d at 1102.

The ordinary remedy for a Jones violation is to remand for further sentencing. Id.

at 1103.       “A remand is unnecessary, however, when the record on appeal is

sufficient to enable review.” United States v. Campbell, 473 F.3d 1345, 1347

(11th Cir. 2007).

          Here, the district court erred in failing to elicit objections after sentencing

because the court’s question to defense counsel―“[I]s there anything you wish to

add at this time?”―is insufficient under Jones. See Campbell, 473 F.3d at 1348

(concluding that questions such as “is there anything further?” or “anything else?”

do not satisfy Jones). However, because the record is sufficient to enable review,

we needn’t remand; rather we will review Lockhart’s objections—explained and

addressed below—as if they were properly raised in the district court.4



3
  We review de novo whether a district court has “elicited fully articulated objections following
the imposition of sentence.” Jones, 899 F.2d at 1103.
4
    Accord, e.g., United States v. Boles, 521 F. App’x 765, 767 (11th Cir. 2013).

                                                  3
                Case: 17-13022       Date Filed: 04/24/2018       Page: 4 of 7


                                            II

       On the merits, Lockhart contends that the district court erred under Federal

Rule of Criminal Procedure 32(i)(3) by (a) not ruling on disputed matters at

sentencing, (b) not specifying which convictions it relied on during sentencing to

determine that he qualified as an armed career criminal, and (c) not specifying

whether those convictions were proven using Shepard sources. 5

       Federal Rule of Criminal Procedure Rule 32 states that, at sentencing, the

court “must—for any disputed portion of the presentence report or other

controverted matter—rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing.”           Fed. R. Crim. P. 32(i)(3)(B).          The rule,

however, is triggered only by “clear and focused objections to specific factual

allegations made in the report” rather than by “[v]ague assertions of inaccuracies in

the report.”     United States v. Owen, 858 F.2d 1514, 1517 (11th Cir. 1988)

(discussing Fed. R. Crim. P. 32(c)(3)(D)―the predecessor to Rule 32(i)(3)(B)).

“A defendant makes a proper objection when he identifies the specific PSI

paragraphs to which he objects and states that the reason for his objection is that

the source of those facts is a particular non-Shepard document.” United States v.

McCloud, 818 F.3d 591, 599 (11th Cir. 2016).

5
 We review a district court’s application of the Federal Rules of Criminal Procedure de novo.
United States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000).
                                                 4
               Case: 17-13022    Date Filed: 04/24/2018   Page: 5 of 7


      Here, the district court did not err because Lockhart’s vague assertions of

inaccuracy were insufficient to trigger Rule 32(i)(3).      In his response to the

presentence report, Lockhart said only—and conclusorily—that he objected “to

being classified as an armed career criminal as defined at USSG § 4B1.4” and “to

each of the offenses listed in this paragraph as qualifiers for ACCA.” He also

disputed “all factual narrative statements concerning prior convictions that do not

come directly from Shepard documents,” but he never alleged that any particular

conviction was based on a non-Shepard document—nor, for that matter, did he

deny that he had sustained the convictions listed in the presentence report. In any

event, the court specifically overruled Lockhart’s armed-career-criminal-

classification objection, and in doing so, explicitly referenced the portion of the

presentence report containing a recitation of Lockhart’s ACCA-qualifying

convictions.

                                       III

      Finally, Lockhart argues on appeal that the district court should not have

found that he was an armed career criminal because (a) a conviction under Fla.

Stat. § 843.01 for resisting a police officer with violence is not a “violent felony”

under the ACCA, (b) a conviction under Fla. Stat. § 893.13 for delivering cocaine

or possessing cocaine with the intent to deliver it is not a “serious drug offense”




                                         5
                Case: 17-13022       Date Filed: 04/24/2018       Page: 6 of 7


under the ACCA, and (c) the government failed to prove that he had three ACCA-

qualifying convictions for offenses committed on separate occasions. 6

       The ACCA states that a person convicted under 18 U.S.C. § 922(g)(1), who

has three or more prior convictions for a violent felony or serious drug offense,

shall be imprisoned not less than 15 years. 18 U.S.C. § 924(e)(1). Lockhart’s

assertion that his convictions under Fla. Stat. §§ 843.01 and 893.13 do not qualify

as ACCA predicates is foreclosed by binding circuit precedent. We have held that

a conviction under Fla. Stat. § 843.01 qualifies as a violent felony under the

ACCA. United States v. Hill, 799 F.3d 1318, 1322–23 (11th Cir. 2015). We have

also held that a conviction under Fla. Stat. § 893.13 is a “serious drug offense”

under the ACCA. United States v. Smith, 775 F.3d 1262, 1266–68 (11th Cir.

2014). Finally, where―as here―the undisputed facts recited in the presentence

report demonstrate that the crimes are “temporally distinct,” they constitute

separate offenses for purposes of the ACCA. United States v. Sneed, 600 F.3d

1326, 1329 (11th Cir. 2010); see also McCloud, 818 F.3d at 595 (“The district

court may make findings of fact based on undisputed facts in the PS[R].”).

Therefore, the district court did not err in finding that Lockhart qualified as an

armed career criminal under the ACCA.
6
  We review de novo whether a prior conviction is a violent felony or serious drug offense within
the meaning of the ACCA. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014);
United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002). We review de novo whether
prior convictions were committed on separate occasions for purposes of the ACCA. See United
States v. Sneed, 600 F.3d 1326, 1330 n.5 (11th Cir. 2010).
                                                6
       Case: 17-13022   Date Filed: 04/24/2018   Page: 7 of 7


                                IV

For the foregoing reasons, we AFFIRM.




                                7
