           Case: 17-10679   Date Filed: 02/13/2018    Page: 1 of 9


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10679
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cr-20328-FAM-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


ANTHONY BRIAN JONES,

                                                          Defendant-Appellant.

                       ________________________

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

                            (February 13, 2018)



Before WILSON, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
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      Anthony Brian Jones appeals his conviction for possession of a firearm by a

convicted felon under 18 U.S.C. § 922(g)(1), and his sentence enhancement under

18 U.S.C. § 924(e)(1). Jones asserts three issues on appeal, which we address in

turn. After review, we affirm Jones’ conviction and sentence.

                                  I. DISCUSSION

A. Motion to Suppress

      Jones asserts the district court erred when it denied his motion to suppress

after finding the arresting officers had reasonable suspicion to stop him. Jones

contends it was improper for the Government to rely on a flyer to establish

reasonable suspicion, because it failed to present evidence demonstrating the flyer

itself was issued based on reasonable suspicion. Jones asserts he did not take any

actions that would cause the officers to stop him, and he did not match the

description contained in the flyer.

      In United States v. Hensley, the Supreme Court determined that police can

rely on wanted flyers to justify a stop of a person to check identification, pose

questions, or detain the person briefly, as long as the flyer itself was issued based

on articulable facts supporting reasonable suspicion that the wanted person

committed an offense. 469 U.S. 221, 232–33 (1985).

      The district court did not err when it denied the motion to suppress, because

under the totality of the circumstances, there was reasonable suspicion to stop


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Jones. See United States v. Ramirez, 476 F.3d 1231, 1235–36 (11th Cir. 2007)

(stating in reviewing a district court’s denial of a motion to suppress, we review the

court’s findings of fact for clear error and application of laws to those facts de

novo); United States v. Griffin, 696 F.3d 1354, 1359 (11th Cir. 2012) (providing

we evaluate the totality of the circumstances to determine whether reasonable

suspicion existed). Even assuming the flyer did not comport with Hensley, the

district court did not err in concluding other circumstances created reasonable

suspicion. First, Jones fled immediately when Officer Coto exited the unmarked

vehicle. Such flight created an “ambiguity” that justified the officers’ pursuit and

eventual stop of Jones. See United States v. Franklin, 323 F.3d 1298, 1302 (11th

Cir. 2003) (providing flight creates an ambiguity regarding the innocence of the

fleeing person, and as such, officers may stop the person to resolve that

ambiguity). Further, Officer Coto testified the area the officers were patrolling

was a high-crime area. While evidence Jones was in a high-crime area would not

be enough, on its own, to create reasonable suspicion, the flight coupled with

Jones’ presence in the high-crime area was sufficient to create reasonable

suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000). Additionally,

although Jones argued he did not realize the police were after him and he ran

because he thought his life was in danger, the court did not commit clear error by

determining those facts were irrelevant. Even if Jones did not realize he was being


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pursued by the police immediately, Officer Coto made his presence known by

yelling “police, stop,” and he witnessed Jones discard the gun. Thus, viewing the

record as a whole and construing the court’s factual findings in the light most

favorable to the Government, such facts are sufficient to conclude that, under the

circumstances, the officers had reasonable suspicion to stop Jones. United States v.

Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007) (holding we may review the entire

record when reviewing the denial of a motion to suppress). Accordingly, the court

did not err in denying the motion to suppress.

B. Brady violation

      Jones argues the Government committed a reversible Brady violation by

failing to disclose impeachment material regarding Sergeant Tate—the officer who

was driving the police vehicle—before the suppression hearing. Specifically,

Jones contends the Government was required to turn over information from a state-

level investigation about Tate’s involvement in a police shooting.

      In Brady, the U.S. Supreme Court held that “suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment.” Brady v. Maryland, 373

U.S. 83, 87 (1963). To establish a Brady violation, a defendant must show that:

(1) the government possessed evidence favorable to the defendant, including

impeachment evidence; (2) the defendant did not possess the evidence, nor could


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he obtain it himself with any reasonable diligence; (3) the government suppressed

the evidence; and (4) had the evidence been disclosed to the defense, a reasonable

probability exists that the outcome of the proceedings would have been different.

United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001). A “reasonable

probability” of a different result is shown when the suppression of the evidence

“undermines confidence in the outcome” of the case. Kyles v. Whitley, 514 U.S.

419, 434 (1995).

       A review of the record shows the Government did not commit a reversible

Brady violation. 1 See United States v. Schlei, 122 F.3d 944, 989 (11th Cir. 1997)

(reviewing an alleged Brady violation de novo). Even if Jones has shown (1) the

Government possessed impeachment evidence about Sergeant Tate that would be

favorable to his case, (2) he could not obtain the information about the state-level

investigation with reasonable diligence, and (3) the Government suppressed the

evidence, his Brady claim is unavailing because he cannot demonstrate a

reasonable probability the outcome of his proceedings would have been different if


       1
          Jones does not demonstrate the cumulative impact of denying his request for
information regarding Sergeant Tate and the court’s refusal to submit news articles into evidence
resulted in a reversible Brady violation. Kyles, 514 U.S. at 421. First, the articles were not
denied as part of a request for Brady information, but were instead denied on relevance grounds.
Moreover, Jones does not present arguments in his brief showing the court abused its discretion
by not admitting the articles, and the court was within its discretion to deny the evidence of
national news articles as irrelevant to this case. Proctor v. Fluor Enters., Inc., 494 F.3d 1337,
1349 n.7 (11th Cir. 2007) (reviewing a court’s evidentiary rulings for abuse of discretion); Fed.
R. Evid. 401, 402. Thus, no reversible Brady violation occurred in this respect either.

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the Government had disclosed the impeachment evidence. See Hansen, 262 F.3d

at 1234. First, a review of the record shows Sergeant Tate’s involvement in Jones’

apprehension was minimal. Sergeant Tate drove the vehicle, but from the record,

it is not clear that he had any other contact with Jones. Moreover, the ongoing

investigation into Sergeant Tate’s involvement in a police shooting does not appear

to be relevant to Jones’ case, which is about whether there was reasonable

suspicion to stop Jones. Thus, Jones fails to demonstrate that the suppressed

evidence was so material to his case that it undermines confidence in the outcome.

See Kyles, 514 U.S. at 434. Further, the Government agreed it would turn over the

grand jury testimony if Agent Armenteros testified, and the district court found this

was proper. Agent Armenteros did not testify, and thus, turning over such

evidence was unnecessary. In any event, it is unclear how grand jury testimony

from an agent not involved in Jones’ arrest would materially affect the outcome of

his case.

C. ACCA

      Jones asserts his Florida offense of resisting an officer with violence in

which adjudication was withheld does not qualify as a predicate conviction for

purposes of the Armed Career Criminal Act (ACCA) sentencing enhancement, and

that as such, the application of the enhancement to his sentence violated his

constitutional rights.


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        Under the ACCA, a defendant convicted of being a felon in possession of a

firearm under § 922(g) who has three or more prior convictions for a “violent

felony” faces a mandatory minimum 15-year sentence. 18 U.S.C. § 924(e)(1).

Under § 921(a)(20), what constitutes a “conviction” for purposes of the ACCA is

determined in accordance with the law of the state where the proceedings were

held. 18 U.S.C. § 921(a)(20)(b). In United States v. Santiago, 601 F.3d 1241

(2010), at issue was whether a guilty plea followed by a sentence of probation and

a withholding of adjudication in Florida was a “conviction” that qualified for the

ACCA enhancement. Id. at 1244. We turned to the Florida habitual offender

statute, which stated that “the placing of a person on probation . . . without an

adjudication of guilt shall be treated as a prior conviction.” Id. at 1245; Fla. Stat.

§ 775.084(2) (emphasis added). Thus, we held that a guilty plea followed by a

sentence of probation and withholding of adjudication in Florida constituted a

conviction for the purposes of the ACCA enhancement. 2 Santiago, 601 F.3d at

1245.


        2
          Our decision in United States v. Clarke, 822 F.3d 1213 (2016), does not affect our
holding in Santiago. In Clarke, we certified a question to the Florida Supreme Court regarding
its treatment of a guilty plea for a felony with adjudication withheld for purposes of its felon in
possession statute, Fla. Stat. § 790.23(1). Clarke, 922 F.3d at 1214. The Florida Supreme Court
held that a guilty plea for a felony for which adjudication was withheld does not qualify as a
conviction for purposes of its felon in possession statute. Clarke v. United States, 184 So. 3d
1107, 1108 (Fla. 2016). Based on the Florida Supreme Court’s clear response, our court
overruled our prior panel precedent in United States v. Orellanes, 809 F.2d 1526 (11th Cir.
1987), and United States v. Grinkiewicz, 873 F.2d 253 (11th Cir. 1989), holding a Florida guilty
plea for a felony for which adjudication was withheld qualified as a conviction for purposes of
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       The district court did not err when it found that Jones qualified for the

ACCA enhancement. 3 See United States v. Day, 465 F.3d 1262, 1264 (11th Cir.

2006) (reviewing de novo whether a conviction is a violent felony for purposes of

§ 924(e)). Pursuant to Santiago, because Florida law considers a guilty plea

followed by a withholding of adjudication to be a conviction for purposes of

sentencing enhancement for habitual felony offenders, the court did not err in

finding a guilty plea for resisting an officer with violence followed by a

withholding of adjudication was a conviction. Santiago, 601 F.3d at 1244.

Further, because a Florida offense for resisting an officer with violence is



the federal felon in possession statute, 18 U.S.C. § 922(g). See Clarke, 922 F.3d at 1215.
Importantly, in its decision, the Florida Supreme Court distinguished the state felon-in-
possession statute which did not specifically provide that a guilty plea for which adjudication
was withheld should count as a prior conviction, with Florida statutes that specifically provide
that guilty pleas with adjudication withheld count as prior convictions. Clarke, 184 So. 3d at
1113-14. One of those statutes specifically mentioned was Fla. Stat. § 775.084, regarding a
sentence enhancement for habitual felony offenders, which expressly treats probation or
community control without an adjudication of guilt as a prior conviction. Id. at 1113. Section
775.084 is the statute we looked to as the closest state analog to the federal ACCA in Santiago.
601 F.3d at 1245.
       3
          Jones’ due process argument also fails. While he cites cases that stand for the
proposition that the uniform application of federal laws across states is important, he does not
cite any case law supporting a valid due process claim for disparate treatment under the ACCA.
As such, Jones did not meet his burden on appeal of showing the court committed a
constitutional violation by applying the sentence enhancement. See Gardner v. California, 393
U.S. 367, 370 (1969) (providing the appellant generally has the burden of convincing the
appellate court the district court committed an error). Moreover, assuming that Jones is
attempting to argue the ACCA’s use of state law to determine what constitutes a “conviction” is
unconstitutionally vague, the claim fails. Although Johnson struck down the residual clause as
unconstitutionally vague, it left the remaining portions of the ACCA undisturbed. Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015). Because Jones’ sentence enhancement did not rely
on the residual clause, his sentence is not unconstitutional for vagueness.

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categorically a “violent felony” under the ACCA’s elements clause, such a

conviction was properly considered to be a predicate offense for the § 924(e)(1)

sentence enhancement. See United States v. Hill, 799 F.3d 1318, 1322–23 (11th

Cir. 2015) (holding a conviction under Florida law for resisting an officer with

violence categorically qualifies as a “violent felony” under the “elements clause”

of the ACCA).

                                II. CONCLUSION

      The district court did not err in denying Jones’ motion to suppress, and the

Government did not commit a reversible Brady violation by failing to turn over

material regarding Sergeant Tate. Additionally, Jones’ Florida offense of resisting

an officer with violence qualifies as a predicate conviction for the purposes of the

ACCA where he pled guilty and adjudication was withheld.

      AFFIRMED.




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