                   Case: 12-11665          Date Filed: 04/23/2013   Page: 1 of 29


                                                                         [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-11665
                                         Non-Argument Calendar
                                       ________________________

                              D.C. Docket No. 9:11-cr-80138-DTKH-1


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

GERSON THERAMENE,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                      ________________________

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

                                            (April 23, 2013)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         Gerson Theramene appeals his convictions and total sentence of 240 months

for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count 1);
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possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) (Count 2);

possession with intent to distribute cocaine base, commonly known as “crack

cocaine,” 21 U.S.C. § 841(a)(1) (Count 3); and possession of a firearm in

furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A) (Count 4). For

the reasons set forth below, we affirm Theramene’s convictions and sentences.

                                              I.

       Before trial, Theramene filed two motions to dismiss Count 1 of the

indictment on the basis that § 922(g)(1) was unconstitutional. Theramene also

filed a motion to suppress the statement he gave to law enforcement following his

arrest because, before he was interrogated, agents allegedly informed Theramene

that, if he did not cooperate with them, they would arrest his sister and brother. At

the hearing on Theramene’s motion to suppress, Adam Myers, a detective with the

West Palm Beach Police Department, testified that he interviewed Theramene at

the police station. The interview was recorded, with the exception of Myers

reading Theramene his Miranda 1 rights, and Myers was unsure who had activated

the recording device or why not all of the interview was recorded. Myers had not

threatened Theramene with the arrest of his brother or sister during the interview.

       At the hearing, Theramene testified on his own behalf that he was advised of

his Miranda rights before he was interviewed, but he only agreed to speak because
       1
         Miranda v. Arizona, 384 U.S. 436, 444, 460-61, 86 S.Ct. 1602, 1612, 1620-21, 16
L.Ed.2d 694 (1966).

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officers had threatened to arrest his sister, brother, and girlfriend if he did not.

While on the front lawn of his residence, a masked officer in a S.W.A.T. team

uniform threatened Theramene. Theramene did not know the speaker’s race or his

identity because the speaker was masked. Theramene asked Myers at the

beginning of the interview at the police station whether his family was going to be

arrested. Myers responded that Theramene’s brother and sister would not be

arrested if Theramene cooperated.

      Brian Arlotta, a detective with the West Palm Beach Police Department,

testified at the hearing that he was part of the S.W.A.T. entry team that was

involved in the execution of a search warrant at Theramene’s residence. The

S.W.A.T. team had the option of wearing a black mask that had “somewhat” of a

large opening around the face so that a person’s nose and a lot of the face itself was

visible. During the execution of the search warrant, 25 officers were present, 14 or

15 of which were on the S.W.A.T. team. Arlotta testified that he was unaware of

any S.W.A.T. team member having a discussion with Theramene about his

cooperation in the case. There were, however, narcotics officers also on the scene

during the execution of the warrant, but Arlotta did not know if those officers had a

conversation with Theramene. Those officers who were present during the

execution of the search warrant wore masks just like the S.W.A.T. team members.




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Although Arlotta had interviewed Theramene, he did not discuss charging

Theramene’s sister or brother with Theramene.

      In a report and recommendation, a magistrate judge found that the officers

executing the search warrant at Theramene’s residence wore masks that covered

their faces, but their skin color could still be seen. Theramene, however, had

testified that he was unable to see the skin color of the officer who threatened him

because the officer was wearing a mask. Further, although Theramene claimed

that Myers told him that his siblings would not be arrested so long as he

cooperated, no mention was made during the recording of his siblings being

arrested, and Myers expressed surprise that Theramene’s sister was an occupant of

the residence. Theramene did not express any concern about his siblings being

arrested during the recording. The magistrate credited the testimony of the officers

and found Theramene’s testimony that law enforcement threatened to arrest his

siblings and girlfriend to not be credible or supported by the video recording.

Thus, the magistrate recommended that Theramene’s motion to suppress be

denied. The magistrate also recommended that Theramene’s motions to dismiss

Count 1 of the indictment be denied because his arguments concerning the

constitutionality of § 922(g)(1) were foreclosed by our precedent. The district

court adopted the magistrate’s recommendation over Theramene’s objections.




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      The government filed a motion in limine that sought to admit, inter alia, a

2009 incident related to Theramene’s possession of crack cocaine with intent to

distribute, pursuant to Fed.R.Evid. 404(b) (“Rule 404(b)”). The incident had

resulted in Theramene pleading guilty to possession of crack cocaine. The court

withheld ruling on the issue until trial. At trial, over Theramene’s objection, the

court determined that the evidence was admissible under Fed.R.Evid. 403 and Rule

404(b), and the government presented evidence of the 2009 incident at trial.

      After the jury had begun deliberating, the court received a note from the jury

requesting the court to provide further guidance as to interpreting and

understanding the criteria related to “in furtherance of a crime.” Theramene

objected to the court doing anything other than re-reading the initial jury

instruction. The court overruled Theramene’s objection, and the court instructed

the jury that the government had to prove beyond a reasonable doubt that

Theramene possessed the firearm in furtherance of a drug-trafficking crime,

meaning that there was some connection between possessing the firearm and the

drug-trafficking crime. The court gave examples of scenarios that could satisfy the

“in furtherance” element and also repeatedly instructed the jury that the

government had the burden to prove the element beyond a reasonable doubt. After

further deliberations, the jury found that Theramene was guilty of all four counts in

the indictment.


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      Before sentencing, Theramene objected to the probation officer’s

classification of his prior conviction for fleeing or attempting to elude a marked

police vehicle as a crime of violence. According to Theramene, the Supreme

Court’s decision in United States v. Sykes, 564 U.S. ___, 131 S.Ct. 2267, 180

L.Ed.2d 60 (2011), holding that vehicular flight under an Indiana statute was a

violent felony under the Armed Career Criminal Act (“ACCA”), did not abrogate

our decision in United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009), holding

that a violation of Fla.Stat. § 316.1935(2) was not a violent felony. At sentencing,

the parties agreed that Theramene’s fleeing and eluding conviction was under

Fla.Stat. § 316.1935(2). The court determined that Sykes effectively overruled

Harrison. It could not distinguish Theramene’s offense under Fla.Stat.

§ 316.1935(2) from the Indiana statute at issue in Sykes, and thus, it determined

that his offense was for a crime of violence. The court also determined that a

majority of the Supreme Court had not yet held that the residual clause was void

for vagueness, and thus, the court overruled Theramene’s vagueness objection.

      After considering the 18 U.S.C. § 3553(a) factors and Theramene’s

mitigating arguments, the court imposed a total sentence of 240 months’

imprisonment.

                                              II.




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      On appeal, Theramene argues that the district court erred in denying his Rule

404(b) objections to the admission of evidence of his 2009 arrest for possession of

crack cocaine with intent to distribute that resulted in a conviction for possession

of crack cocaine, as the evidence was not similar-fact evidence, it only showed his

propensity to commit the charged offense, and its prejudicial value outweighed any

probative value it may have had. Theramene asserts that the government, by

introducing evidence of his arrest in 2009, went beyond the face of a judgment of

conviction for simple possession, which had been the result of a plea agreement in

state court, and violated his due process rights. Theramene asserts that the

government must adhere strictly to the terms of plea agreements and is bound to

the charge that it agreed to at the time the plea was entered.

      We review the district court’s admission of prior crimes or bad acts under

Rule 404(b) for abuse of discretion. United States v. Ramirez, 426 F.3d 1344,

1354 (11th Cir. 2005). Evidence of a person’s character is not admissible for the

purpose of proving action in conformity therewith on a particular occasion.

Fed.R.Evid. 404(a). Rule 404(b), however, allows evidence of other crimes or acts

to be admitted for the purpose of showing a defendant’s intent. Fed.R.Evid.

404(b)(2). An extrinsic act does not need to result in criminal liability to be

admissible under Rule 404(b), nor does the government have to prove the extrinsic

offense beyond a reasonable doubt. United States v. Wyatt, 762 F.2d 908, 911


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(11th Cir. 1985) (providing that evidence of a defendant’s prior bad act would be

admissible under Rule 404(b) even if he had been tried and acquitted of the act).

Further, we have previously held that a nolo contendere plea to an offense does not

insulate the underlying facts from admissibility under Rule 404(b). Id. at 909,

911-12 (providing that the government’s introduction of extensive evidence

concerning the facts that underlay a defendant’s plea of nolo contendere to charges

of conspiracy to traffic in cocaine in Florida was not reversible error).

      To be admissible, the Rule 404(b) evidence must: (1) be relevant to an issue

other than the defendant’s character; (2) be proved sufficiently to permit a jury

determination that the defendant committed the act; and (3) be of such a character

that its probative value is not substantially outweighed by undue prejudice. United

States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Under the first prong of

the Rule 404(b) test, a defendant who pleads not guilty to a drug-trafficking

offense makes intent a material issue, absent the defendant taking affirmative steps

to remove intent as an issue. United States v. Zapata, 139 F.3d 1355, 1357-58

(11th Cir. 1998). Where an extrinsic offense is offered to prove intent, its

relevance is determined by comparing the defendant’s state of mind in perpetrating

the extrinsic and charged offenses. United States v. Edouard, 485 F.3d 1324,

1345 (11th Cir. 2007). Thus, the first prong of the Rule 404(b) test is satisfied




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where the state of mind required for the charged and extrinsic offenses is the same.

Id.

        In applying the third prong of the Rule 404(b) test, the probative value of the

Rule 404(b) evidence must not be substantially outweighed by its prejudicial

effect. Jernigan, 341 F.3d at 1282. To make this determination, a district court

must assess all the circumstances surrounding the extrinsic offense, including

prosecutorial need, overall similarity between the extrinsic act and the charged

offense, and temporal remoteness. Id. A district court’s limiting instruction can

reduce the risk of undue prejudice. Edouard, 485 F.3d at 1346. A similarity

between the other act and a charged offense will make the other act highly

probative as to a defendant’s intent in the charged offense. Ramirez, 426 F.3d at

1354.

        The district court did not abuse its discretion in admitting evidence of

Theramene’s 2009 arrest and conviction for possession of cocaine at trial. First,

the facts surrounding Theramene’s arrest for possession of crack cocaine with

intent to distribute were admissible, despite the fact that Theramene was only

convicted of possessing the drugs, as an extrinsic act does not have to result in a

conviction to be admissible under Rule 404(b). See Wyatt, 762 F.2d at 911.

Theramene’s 2009 plea of guilty to possession of crack cocaine did not insulate the

facts underlying his plea from admissibility under Rule 404(b). Id. at 911-12. To


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the extent Theramene argues that the federal government breached his state plea

agreement, his argument is without merit, as he never even specified what terms

the federal government breached or how it could breach an agreement to which it

was not a party.

      By pleading not guilty to the possession with intent to distribute charges in

the instant case, Theramene rendered his intent a material issue. Zapata, 139 F.3d

at 1357-58. Although his 2009 conviction for possession of crack cocaine,

standing alone, may not have been relevant to show Theramene’s intent in the

instant case, the facts underlying his conviction coupled with the expert testimony

presented at trial showed that Theramene had possessed crack cocaine with the

intent to distribute, which was the same state of mind required for the instant

charged offenses; thus, the first prong of the Rule 404(b) test was satisfied.

Edouard, 485 F.3d at 1345. Further, the probative value of the 2009 extrinsic act

was not substantially outweighed by unfair prejudice. Jernigan, 341 F.3d at 1282.

Intent was one of the more difficult issues the government had to prove at trial, as

demonstrated by Theramene’s challenge on appeal to the sufficiency of the

evidence as to this element. Further, the court’s limiting instruction given at trial

reduced the risk of unfair prejudice that may have resulted from the evidence’s

admission. Edouard, 485 F.3d at 1346. Accordingly, the district court did not




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abuse its discretion in admitting evidence of Theramene’s 2009 conduct involving

possession of crack cocaine.

                                          III.

      Theramene argues that the evidence presented at trial was insufficient to

support the “with the intent to distribute” element of his drug-trafficking offenses

in light of the minuscule amount of cocaine base discovered and the lack of

paraphernalia normally possessed by one distributing drugs, such as packing,

cutting, or preparation material. Theramene had also informed officers that the

cocaine was for personal use.

      We review both a challenge to the sufficiency of the evidence and the denial

of a Fed.R.Crim.P. 29 motion for judgment of acquittal de novo. United States v.

Gamory, 635 F.3d 480, 497 (11th Cir.), cert. denied, 132 S.Ct. 826 (2011). In

considering the sufficiency of the evidence, we view the evidence in the light most

favorable to the government, with all inferences and credibility choices made in the

government’s favor, and affirm the conviction if, based on this evidence, a

reasonable jury could have found the defendant guilty beyond a reasonable doubt.

Id. It is not necessary that the evidence presented at trial excludes every

reasonable hypothesis of innocence or is wholly inconsistent with every conclusion

except that of a defendant’s guilt. Id.




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      To support a conviction under 21 U.S.C. § 841(a)(1), the government must

establish that the defendant (1) knowingly (2) possessed cocaine (3) with intent to

distribute it. United States v. Faust, 456 F.3d 1342, 1345 (11th Cir. 2006).

Knowledge, possession, and intent can be proved by direct or circumstantial

evidence. United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989). Intent

can be proven circumstantially from the quantity of drugs and the existence of

implements, like scales, that are commonly used in connection with the distribution

of cocaine. Id.

      The evidence presented at trial was sufficient to convict Theramene of

possession of cocaine and crack cocaine with intent to distribute. At trial, a law

enforcement officer testified on behalf of the government that he observed

Theramene, on at least three occasions, meet with another person, have a brief

discussion, and then engage in a hand-to-hand transaction with something.

Further, the government presented evidence that showed that law enforcement had

discovered 8.1 grams of cocaine in a compressed form, .8 grams of crack cocaine,

a loaded handgun, and a digital scale with cocaine residue on it, in Theramene’s

bedroom. Law enforcement did not discover a crack pipe or other paraphernalia

related to cocaine use in the home.

      An expert in street-level narcotics distribution testified that compressed

cocaine needed additional processing before it could be used, such as cooking it


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into crack cocaine or breaking it down so that it could be snorted as powder.

Further, that expert testified that crack cocaine was distributed in .1 or .2 of a gram

increments at a time, but the evidence showed that Theramene possessed .8 grams

of crack cocaine. Expert testimony further provided that drug dealers frequently

used digital scales to ensure that they were selling the correct amounts and that

dealers frequently carried handguns to protect themselves from being robbed. The

government also introduced evidence of Theramene’s 2009 arrest where he was

found possessing 20 to 30 crack cocaine rocks, and expert testimony provided that

most users would only purchase 1 or 2 pieces of crack cocaine at a time. Viewing

this evidence in the light most favorable to the government and drawing all

inferences in favor of the government, this evidence was sufficient to show that

Theramene possessed cocaine and crack cocaine with the intent to distribute.

                                          IV.

      Theramene argues that the district court erred in denying his motion to

suppress his post-arrest statement to law enforcement, as his waiver of his Miranda

rights and decision to speak with law enforcement was due to law enforcement’s

threat to take his family to jail. Detective Arlotta was unable to testify as to

whether any other narcotics officer present during the execution of the search

warrant had spoken with Theramene, and the officers failed to record the whole




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conversation with Theramene, which explained why the magistrate determined that

there was nothing on the recording to corroborate Theramene’s testimony.

      In reviewing the denial of a suppression motion, we review the district

court’s factual findings for clear error and its application of the law to those facts

de novo. United States v. Farley, 607 F.3d 1294, 1325 (11th Cir. 2010). The

voluntariness of a defendant’s statement is a question of law. Id. We construe all

facts in the light most favorable to the party who prevailed below and afford

substantial deference to a factfinder’s explicit and implicit credibility

determinations. United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). We

have recognized that statements are involuntary where law enforcement engages in

deception that takes the form of a coercive threat. Farley, 607 F.3d at 1328.

      We afford substantial deference to the factfinder’s credibility choices, and

here, the magistrate expressly found that the government’s witnesses were

credible, whereas Theramene was not. Lewis, 674 F.3d at 1303. Thus, the

magistrate credited Myers’s testimony that he did not threaten Theramene before

interviewing him. Further, although the magistrate also credited Arlotta’s

testimony that he did not threaten Theramene, Arlotta also testified that he was

unable to testify as to whether a narcotics officer, wearing a S.W.A.T. team mask,

had spoken with Theramene. Nevertheless, the magistrate implicitly credited

Arlotta’s testimony that the skin color of a person wearing a S.W.A.T. mask was


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visible, over Theramene’s testimony that he could not see the officer’s skin color

through the mask. Thus, although Arlotta could not testify as to whether a

narcotics officer, as opposed to a S.W.A.T. team member, spoke with Theramene

during the execution of the search warrant, it is undisputed that Theramene

expressed no concern over his siblings during his interviews and that there were

inconsistencies between Theramene’s testimony and the testimony of Arlotta, who

the magistrate determined was credible. Accordingly, the magistrate’s credibility

findings concerning Theramene’s testimony that he was threatened were not

clearly erroneous.

                                         V.

      Theramene argues that the district court abused its discretion in responding

to the jury’s request for additional guidance concerning the “in furtherance of”

element of one of the charged offenses. Rather than simply re-read the standard

jury instruction, the court provided its own examples of what “in furtherance”

could mean, including possessing a firearm to protect drugs and drug proceeds,

possessing a firearm to prevent a home invasion aimed at obtaining the drugs

stored at the home, and possessing a firearm so that a person could engage in drug

sales more safely. According to Theramene, the court’s instructions amounted to

argument on behalf of the government to which Theramene could not respond, as

well as placed the court in the role of advocate. Theramene asserts that the court


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also placed facts not in evidence before the jury, but he does not further explain

this assertion.

       We review a district court’s response to a jury question for an abuse of

discretion. United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009).

Although a district court has considerable discretion regarding the extent and

character of supplemental jury instructions, it does not have discretion to misstate

the law or to confuse the jury. Id. at 1247-48. The trial court abuses its discretion

only when its conduct strays from neutrality, and even then only when its remarks

demonstrate pervasive bias and unfairness that actually prejudice a party. United

States v. Hill, 643 F.3d 807, 845-46 (11th Cir. 2011), cert. denied, 132 S.Ct. 1988

(2012) (reviewing the defendants’ argument that the district court had shown

antagonism towards him at trial).

       Theramene does not assert on appeal that the instructions that the court gave

to the jury were legally erroneous, and thus, he has abandoned this argument. See

Jernigan, 341 F.3d at 1283 n.8. We have, in the past, upheld the use of

hypothetical examples to assist the jury in understanding a statutory element. See

United States v. Kenney, 185 F.3d 1217, 1222-23 (11th Cir. 1999) (determining

that the district court did not abuse its discretion with respect to its hypothetical

examples of who could be a “public official,” despite it being possible to construe

the examples as overbroad). After giving the challenged examples to the jury, the


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court stated repeatedly that the government had to prove beyond a reasonable

doubt the “in furtherance of” element, and that the jurors had to make that factual

determination as to whether the element was satisfied using their own judgment.

Further, viewing the jury instruction as a whole, it is clear that the court was not

stating that these examples were present in Theramene’s case, but only explaining

how a firearm could further a drug crime. The record shows that the court did not

place facts before the jury not in evidence or make an argument on behalf of the

government to the jury. Accordingly, the district court did not abuse its discretion

with respect to its supplemental jury instructions, as nothing in the record

demonstrates that the court strayed from neutrality.

                                          VI.

      Theramene argues that the district court erred in finding that his prior

conviction for simple vehicle flight under Fla.Stat. § 316.1935(2) was a crime of

violence because Sykes did not abrogate our decision in Harrison, holding that

such a conviction was not a violent felony under the ACCA. Theramene asserts

that, although the Supreme Court’s decision in Sykes seems to broadly rule that

felony vehicle flight is a violent felony for the purposes of the ACCA, Sykes only

addressed an Indiana statute, which differed from the Florida statute at issue in

Harrison. Theramene notes that the Supreme Court declined to deem it irrelevant

under the residual clause whether a crime is a lesser included offense in cases


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where that offense carries a less severe penalty than the offense that includes it.

Theramene argues that, unlike the Indiana statute at issue in Sykes, which

separately punished simple and aggravated vehicle flight, Fla.Stat. § 316.1935 not

only separately prohibits, but also punishes differently simple and aggravated

vehicle flight, as illustrated by subsections (2) and (3) of the statute. Theramene

contends that the residual clause is void for vagueness.

      We review de novo a district court’s determination that a prior conviction

qualifies as a crime of violence under the Sentencing Guidelines. United States v.

Chitwood, 676 F.3d 971, 975 (11th Cir.), cert. denied, 133 S.Ct. 288 (2012).

Under the Sentencing Guidelines, a defendant is a career offender and subjected to

an enhanced sentence if he, among other requirements, has at least two prior felony

convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). A “crime of violence” is defined as any offense punishable

by imprisonment for a term exceeding one year, that (1) has as an element the use,

attempted use, or threatened use of physical force against the person of another,

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or

(3) otherwise involves conduct that presents a serious potential risk of physical

injury to another. U.S.S.G. § 4B1.2(a)(1)-(2).

      In determining whether a conviction qualifies as a “crime of violence” under

U.S.S.G. § 4B1.2, we have relied on cases interpreting the ACCA, 18 U.S.C.


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§ 924(e), because its definition for a “violent felony” and U.S.S.G. § 4B1.2’s

definition for a “crime of violence” are substantially the same. Chitwood, 676 F.3d

at 975 n.2. In determining whether an offense is a violent felony under the ACCA,

courts should apply a formal categorical approach, looking only to the statutory

definitions of the relevant offenses and not to the particular facts underlying those

convictions. Id. at 976. In United States v. Harrison, we held that a prior state

conviction for simple vehicle flight under Fla.Stat. § 316.1935(2), as opposed to

aggravated vehicle flight under § 316.1935(3), was not a violent felony under the

ACCA’s residual clause. 558 F.3d at 1281.

      In United States v. Sykes, the Supreme Court examined Indiana’s fleeing and

eluding statute, and held that felony vehicle flight was a violent felony for the

purposes of the ACCA. Sykes, 564 U.S. at ___, 131 S.Ct. at 2271, 2277. The

Court held that the Indiana crime fell within the residual clause of

§ 924(e)(2)(B)(ii) because, as a categorical matter, it presented a serious potential

risk of physical injury to another. Id. at 2273. The risk posed by the crime was

comparable to that posed by arson and burglary, the crime’s closest analogs among

the enumerated offenses. Id. The Court noted that, even where a criminal

attempted to elude capture without going at full speed, he created the possibility

that police would, in a legitimate and lawful manner, exceed or almost match his

speed and use force to bring him within their custody. Id. The offense was


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initiated and terminated by confrontation with law enforcement, and the

intervening pursuit created a high risk of crashes. Id. at ___, 131 S.Ct. at 2274.

      The Court also discussed the significance of the Indiana statute’s

differentiation between types of fleeing. Id. at ___, 131 S.Ct. at 2276. Sykes’s

offense, subsection (b)(1)(A) of Ind. Code § 35-44-3-3, criminalized flight in

which the offender used a vehicle. Id. Subsection (b)(1)(B) of the statute

criminalized flight in which the offender operated a vehicle in a manner that

created a substantial risk of bodily injury to another person. Id. The Court rejected

the argument that the statute was structured this way because the Indiana

legislature did not intend subsection (b)(1)(A)’s general prohibition on vehicle

flight to encompass the particular class of vehicle flights that subsection (b)(1)(B)

reached. Id. Rather, the Court noted that the Indiana statute treated violations of

subsections (b)(1)(A) and (b)(1)(B) as crimes of the same magnitude and that the

similarity in punishment for these related, overlapping offenses suggested that

subsection (b)(1)(A) was the rough equivalent of one type of subsection (b)(1)(B)

violation. Id. The Court stated that the government would go further, deeming it

irrelevant under the residual clause whether a crime was a lesser included offense

even in cases where that offense carried a less severe penalty than the offense that

included it. Id. at ___, 131 S.Ct. at 2277. However, the Court determined that

Sykes’s case did not present the occasion to decide that question. Id.


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      The Court concluded by stating that the residual clause of the ACCA stated

an “intelligible principle” and provided guidance that allowed a person to conform

his or her conduct to the law. Id. The Court noted that, at times, the residual

clause could be difficult to implement, but it remained within congressional power

to enact. Id. In United States v. Gandy, we determined that the residual clause of

the ACCA was not unconstitutionally vague, in light of the Supreme Court’s

comments in Sykes concerning the residual clause. No. 11-15407, manuscript op.

at 8-10 (11th Cir. Feb. 27, 2013). We noted that its conclusion that the residual

clause was not unconstitutionally vague was consistent with all of the other circuits

to have recently addressed the issue. Id. at 9.

      In United States v. Petite, we determined that Sykes had undermined our

holding in Harrison—that simple vehicle flight under Fla.Stat. § 316.1935(2) did

not constitute a violent felony under the ACCA—to the point of abrogation. 703

F.3d 1290, 1297-99 (11th Cir. 2013). However, although Harrison was no longer

binding, Sykes was not necessarily dispositive of Petite’s appeal, as Florida’s

fleeing and eluding statute, § 316.1935, differed from the Indiana statute at issue in

Sykes, as the Florida statute had a gradient of penalties for different levels of

vehicle flight that the Indiana statute did not have. Id. at 1299. Thus, Petite’s case

presented the question the Supreme Court had declined to address, as, in Florida,




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simple vehicle flight is punished differently than aggravated vehicle flight. Id. at

1300.

        We nevertheless determined that, despite Florida’s penalty framework for

fleeing and eluding offenses differing from Indiana’s penalty framework at issue in

Sykes, there was little to distinguish a § 316.1935(2) offense for simple vehicle

flight from the ordinary commission of the Indiana vehicle flight offense at issue in

Sykes. Id. Both § 316.1935(2) and the Indiana statute criminalized the same basic

conduct of intentional vehicle flight, which the Supreme Court had indicated was

inherently risky. Id. at 1300-01. Therefore, we determined that our inquiry under

the ACCA could not be dispositively altered by any difference between Florida’s

and Indiana’s punitive determinations. In light of the Supreme Court’s analysis in

Sykes regarding the substantial risks that are inherent in the offense of intentional

vehicle flight, we concluded that an offense of simple vehicle flight under Fla.Stat.

§ 316.1935(2) presented a serious potential risk of injury to another comparable to

burglary and arson. Id. Thus, the Florida offense qualified as a violent felony

under the ACCA. Id.

        Here, Petite is dispositive of Theramene’s argument that Harrison is still

binding precedent. Specifically, in Petite, we determined that Sykes overruled

Harrison and that, despite the difference in penalty schemes between the Indiana

statute at issue in Sykes and Fla.Stat. § 316.1935, an offense under § 316.1935(2)


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was a violent felony under the ACCA. See id. at 1297-99. Thus, the district court

did not err in determining that Theramene’s § 316.1935(2) conviction qualified as

a crime of violence under § 4B1.1.2 Further, Gandy is dispositive of Theramene’s

argument that the residual clause is void for vagueness, as we determined that the

clause was not unconstitutionally vague, in light of the Supreme Court’s statements

in Sykes. See Gandy, No. 11-15407, manuscript op. at 8-10. Therefore, we reject

Theramene’s vagueness challenge to the residual clause. Accordingly, the district

court properly sentenced Theramene under the career offender guideline.

                                             VII.

       Theramene argues that the district court failed to give adequate weight to the

offense conduct and the mitigating circumstances of his background, including the

small amount of cocaine involved in his case, the impact the death of his mother

had on him, his own drug use beginning at an early age, and the harshness of his

sentence compared to those sentences that are suggested for those who committed

significantly more serious crimes. Theramene asserts that a sentence in the range

of five years’ imprisonment would have been sufficient. Theramene also asserts

that his sentence violated the Eighth Amendment because it was disproportionate

to the offenses he committed, as well as disproportionate when compared to the

sentences that could be imposed for other, more serious federal crimes.
       2
          Fla.Stat. § 316.1935(2) was identically worded at the time of Theramene’s conviction
and at the time of the appellant’s conviction in Petite. See Petite, 703 F.3d at 1292.

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      We review challenges to the constitutionality of a sentence de novo. United

States v. Sanchez, 586 F.3d 918, 932 (11th Cir. 2009). We review the

reasonableness of a sentence under a deferential abuse of discretion standard of

review. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169

L.Ed.2d 445 (2007). The party challenging the sentence has the burden of

establishing that the sentence was unreasonable based on the record and the factors

set forth in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005).

      We have previously stated that, in non-capital cases, the Eighth Amendment

encompasses only a narrow proportionality principal, and that successful

challenges to the proportionality of sentences are “exceedingly rare.” United

States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). When addressing an Eighth

Amendment challenge, a reviewing court must first determine that the sentence

imposed is grossly disproportionate to the offense committed and, if so, then the

court must consider the sentences imposed on others convicted in the same

jurisdiction and the sentences imposed for commission of the same crime in other

jurisdictions. Id. at 1324.

      In reviewing the reasonableness of a sentence, we conduct a two-step

review. Gall, 552 U.S. at 51, 128 S.Ct. at 597. First, we must ensure that no

procedural error occurred, such as improperly calculating the Guidelines range. Id.


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Once we determine that a sentence is procedurally sound, we must examine

whether the sentence was substantively reasonable. Id. In reviewing a sentence’s

substantive reasonableness, we examine the totality of the circumstances, which

includes an inquiry into whether the § 3553(a) factors support the sentence in

question. United States v. Gonzales, 550 F.3d 1319, 1323-24 (11th Cir. 2008).

The district court must impose a sentence sufficient, but not greater than necessary,

to comply with the purposes listed in § 3553(a)(2), including the need to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offense, deter criminal conduct, and protect the public from the defendant’s

future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular

sentence, the court must also consider the nature and circumstances of the offense,

the history and characteristics of the defendant, the kinds of sentences available,

the applicable guideline range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      Theramene has not shown that his sentence violated the Eighth Amendment.

Because he was a career offender, was convicted under 18 U.S.C. § 924(c), and

was convicted of a drug offense, his initial guideline range was 360 months’

imprisonment to life. However, the court downwardly departed and varied from

the guideline range and ultimately imposed a total sentence of 240 months’


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imprisonment. His total sentence of 240 months was not grossly disproportionate

to the drug-trafficking and firearm offenses he committed, as they involved

cocaine, crack cocaine, and possession of a firearm by a felon. United States v.

Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (providing that defendant’s

sentence of 180 months’ imprisonment under the ACCA was not grossly

disproportionate to his sole offense of possession of a firearm by a three-time

felony offender). Further, we reject Theramene’s assertion that his sentence was

grossly disproportionate as compared to the lower sentences that other defendants

receive for more serious crimes, as the first step of our Eighth Amendment analysis

only examines whether a sentence is grossly disproportionate to the offense

actually committed. Raad, 406 F.3d at 1324.

      Further, Theramene has not shown that the district court imposed a

substantively unreasonable sentence. Theramene’s total sentence of 240 months’

imprisonment was below the guideline range of 324 to 405 months’ imprisonment

that applied after the district court granted a downward departure from his original

guideline range. The record demonstrates that the district court considered the

§ 3553(a) factors in imposing the sentence, and there does not appear to be

anything in the record demonstrating that the sentence is substantively

unreasonable based on those factors. The district court considered Theramene’s

extensive criminal history, which demonstrated that he was someone who acted


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aggressively towards others and posed a danger to the community. The court

further determined that the nature of Theramene’s offenses was serious, especially

in light of the fact that he had armed himself while distributing drugs. The court

was unable to state that Theramene would not commit a similar offense in the

future, and, in light of the violent effect the drug trade had on the community,

believed it was important to deter activity like Theramene’s from occurring in the

future.

      Under the totality of the circumstances, Theramene has not shown that the

district court’s decision declining to vary further from the applicable guideline

range, based on his mitigating arguments, was unreasonable or resulted in a

sentence greater than necessary. Gonzales, 550 F.3d at 1323-24. Further, although

the § 3553(a) factors include the need to avoid unwarranted sentence disparities

among defendants who have been found guilty of similar conduct, the factors do

not include the need to avoid disparities between defendants who have committed

different offenses. See 18 U.S.C. § 3553(a). Thus, the district court did not abuse

its discretion in not varying downward further on the basis that defendants who

have committed other crimes and are not sentenced as career offender have lower

base offense levels than Theramene. Therefore, the court’s decision declining to

vary downward further from the applicable guideline range did not result in a

substantively unreasonable sentence.


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                                        VIII.

      Theramene asserts that the district court erred in failing to dismiss Count 1

of his indictment because 18 U.S.C. § 922(g)(1) violated his Second Amendment

rights, as well as exceeded Congress’s power under the Commerce Clause. He

concedes, however, that we have already decided these issues in favor of the

government, and he states that he is only raising these issues to preserve them in

the event we or the Supreme Court revisit them.

      We review denials of motions to dismiss the indictment for abuse of

discretion and review de novo any underlying legal errors. United States v.

Broughton, 689 F.3d 1260, 1272 (11th Cir. 2012). Although the Supreme Court’s

decision in District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783,

2799, 171 L.E.2d 637 (2008), held that the Second Amendment conferred an

individual right to keep and bear arms, statutory restrictions of firearm possession

with respect to felons, like § 922(g)(1), do not violate the Second Amendment. See

United State v. Rozier, 598 F.3d 768, 770-71, (11th Cir. 2010). Further,

§ 922(g)(1) does not exceed Congress’s power under the Commerce Clause

because the statute has a jurisdictional element requiring the firearm at issue to

have a nexus to interstate commerce. See United States v. Scott, 263 F.3d 1270,

1274 (11th Cir. 2001).




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      As Theramene concedes, our precedent forecloses his challenges to the

constitutionality of § 922(g)(1). Accordingly, the district court did not err in

denying his motions to dismiss the indictment.

      For the foregoing reasons, we affirm Theramene’s convictions and

sentences.

      AFFIRMED.




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