         Case: 17-12461   Date Filed: 05/25/2018   Page: 1 of 10


                                              [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 17-12461
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 2:15-cr-14078-KAM-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,


                                versus


MARK AUGUSTUS CHAPPELLE,

                                             Defendant - Appellant.

                     ________________________

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



                            (May 25, 2018)
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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Mark Chappelle appeals his convictions and 264-month sentence for

possession of heroin and cocaine with intent to distribute, carrying a firearm in

relation to a drug trafficking crime, and possession of a firearm by a convicted

felon. First, Chappelle argues that the district court erred in admitting evidence at

trial relating to a THC-infused1 lollipop found in his vehicle. Second, he argues

that the district court erred in enhancing his sentence pursuant to the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e) and in deeming him as a career

offender. After careful consideration of the briefs and the record, and for the

reasons below, we affirm Chappelle’s convictions and sentence in all respects.

                                  I.      BACKGROUND

      Chappelle came to the attention of law enforcement when a confidential

informant reported that Chappelle was selling drugs. During a phone conversation

recorded by law enforcement, the confidential informant arranged to meet with

Chappelle in a Walgreens parking lot. On this call, the informant and Chappelle

did not explicitly discuss the type of drugs, quantity of drugs, or price the

informant would pay. Law enforcement gave the confidential informant $200 in

marked bills and monitored the meeting. They observed the confidential informant


      1
          “THC” stands for tetrahydrocannabinol, which is the primary intoxicant in marijuana.
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approach Chappelle’s vehicle and then return to the law enforcement vehicle with

only $80, as well as crack and heroin. Chappelle was arrested. A search of his

vehicle revealed a gun, additional crack cocaine, cash, heroin, and a THC-infused

lollipop.

      Chappelle was indicted for possession of heroin and cocaine with the intent

to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count I), carrying

a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) (Count II), and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count III). Chapelle pled not

guilty, and the case proceeded to trial.

      Prior to trial, the government notified Chappelle that it intended to tender

into evidence the THC-infused lollipop that officers had seized from Chappelle’s

vehicle in the post-arrest search of the vehicle, as well as a recorded post-arrest

interview in which Chappelle told officers that the lollipop could intoxicate a

person and that he could buy such a lollipop for $5 and resell it for $20. Chappelle

objected to the admission of evidence related to the THC lollipop, arguing that the

evidence was inadmissible under Federal Rule of Evidence 403. He asserted that

because he was on trial only for a single instance of allegedly possessing heroin

and cocaine with the intent to distribute, the THC-infused lollipop had little

probative value with respect to the offense charged. The government responded


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that the lollipop was admissible under Federal Rule of Evidence 404(b) because it

was probative of Chappelle’s intent and knowledge that he sold drugs out of his

vehicle. The district court overruled Chappelle’s objection, reasoning that his

intent to distribute controlled substances was at issue in the case.

      At trial, the government presented evidence showing that the confidential

informant purchased cocaine and heroin from Chappelle. The government also

presented evidence about the THC lollipop that was found in Chappelle’s car and

Chappelle’s statement about reselling the lollipop. After the evidence was

introduced, the district court gave a limiting instruction, telling the jury that it

could consider this evidence only in deciding whether Chappelle had the state of

mind necessary to commit the crimes charged, not for purposes of deciding

whether Chappelle committed the acts charged in the indictment. The jury found

Chappelle guilty on all three counts.

      Before Chappelle’s sentencing, the probation office prepared a presentence

investigation report (“PSR”). The PSR indicated that Chappelle was subject to

sentencing enhancements as an armed career criminal under ACCA, 18 U.S.C.

§ 924(e), and as a career offender under the United States Sentencing Guidelines

§ 4B1.1(a). The PSR identified the following predicate offenses: (1) aggravated

assault with a firearm on a police officer, aggravated assault with a firearm, and

shooting into an occupied vehicle; (2) sale of cocaine; and (3) aggravated assault


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with a deadly weapon. The PSR noted that Chappelle’s offense level under ACCA

was the same under the career offender provisions in § 4B1.1. As a result of these

enhancements, Chappelle’s guideline range was 360 months’ to life imprisonment.

      Chappelle objected to the PSR’s application of the career offender and

armed career criminal enhancements. He argued that his convictions did not

qualify as predicate offenses under ACCA or career offender provision in § 4B1.1.

The government responded that precedent foreclosed Chappelle’s objection, and

the district court agreed. The district court sentenced Chappelle to a below-

guidelines, 264-month total sentence consisting of (1) a 204-month concurrent

sentence of imprisonment on Counts I and III and (2) a consecutive, 60-month

term of imprisonment on Count II, followed by five years’ supervised release.

                        II.    STANDARD OF REVIEW

      We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Lampley, 68 F.3d 1296, 1299 (11th Cir. 1995). This Court

reviews de novo whether a prior conviction qualifies as an ACCA predicate.

United States v. Esprit, 841 F.3d 1235, 1238 (11th Cir. 2016). Additionally, we

review de novo a district court’s decision to classify a defendant as a career

offender under § 4B1.1(a). United States v. Whitson, 597 F.3d 1218, 1220 (11th

Cir. 2014).




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                                III.   DISCUSSION

A.    The District Court Did Not Abuse Its Discretion in Admitting Evidence
      Related to the THC Lollipop.

      Chappelle argues that the district court erred in admitting evidence relating

to the THC lollipop that officers found in his vehicle after his arrest. Specifically,

he contends that the district court should have excluded evidence about the lollipop

under Federal Rule of Evidence 404(b) because the government offered the

evidence only to show his criminal disposition.

      Federal Rule of Evidence 404(b) forbids the admission of evidence of

another crime, wrong, or act to prove a person’s character and show that he acted

in conformity with that character. Fed. R. Evid. 404(b). Such evidence may,

however, be admissible for other purposes, such as proving intent or knowledge.

Id. For evidence to be admissible under Rule 404(b),

      (1) it must be relevant to an issue other than defendant’s character;
      (2) there must be sufficient proof to enable a jury to find by a
      preponderance of the evidence that the defendant committed the act(s)
      in question; and (3) the probative value of the evidence cannot be
      substantially outweighed by undue prjejudice, and the evidence must
      satisfy Rule 403.

United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). In evaluating the

third prong, we review the evidence in the light most favorable to its admission.

Id. at 1344 n.8. The determination of whether the probative value of the evidence

is substantially outweighed by unfair prejudice lies within the sound discretion of


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the district court and requires an assessment of all the circumstances surrounding

the extrinsic evidence, including prosecutorial need, the similarity between the

extrinsic act and the charged offense, and temporal remoteness. United States v.

Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003). A limiting instruction to the jury

“can diminish any unfair prejudice caused by the evidence’s admission.” United

States v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011).

      Chappelle contends that the district court abused its discretion in admitting

evidence about the THC lollipop because the probative value of this evidence was

substantially outweighed by the danger of unfair prejudice. We disagree.

       Evidence relating to the THC lollipop satisfies the requirements for

admissibility under Rule 404(b). First, Chappelle’s intent to distribute was a

relevant issue in the case. Entering a not guilty plea “makes intent a material

issue.” Edouard, 485 F.3d at 1345 (internal quotation marks omitted). Chappelle

entered a not guilty plea and made no stipulations to remove intent as a material

issue in the case. Moreover, the district court was not unreasonable in concluding

that Chappelle’s recorded conversation—in which he stated that he could buy the

THC lollipop for $5 and resell it for $20—was relevant in establishing his intent to

sell narcotics.

       Second, sufficient evidence existed for a reasonable jury to find that

Chappelle possessed the lollipop and that it contained THC. The government


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submitted the lollipop itself, testimony regarding the lollipop, and a recording of

Chappelle acknowledging his possession of it.

       Third, the risk of unfair prejudice from the admission of the evidence about

the lollipop did not substantially outweigh the evidence’s probative value. As

discussed above, the evidence carried some probative value: Chappelle’s recorded

conversation regarding the THC lollipop’s potential sale and profitability was

relevant to establish his intent to sell drugs. Furthermore, the fact that Chappelle

possessed and intended to sell the THC lollipop at the same time that he sold the

cocaine and heroin favored admissibility. See Jernigan, 341 F.3d at 1282 (finding

that the Rule 403 calculus favored admissibility of past convictions where close

time span between the past convictions and the charged conduct were “well within

the temporal bounds of relevance”). We acknowledge that this evidence was

somewhat prejudicial. But the district court mitigated such risk by twice giving the

jury limiting instructions as to the proper use of the evidence. Therefore, the

district court did not abuse its discretion in allowing the admission of the evidence

under Rule 404(b) as evidence of intent to sell narcotics. 2




       2
         The government also argues in the alternative that (1) possessing the THC lollipop was
inextricably intertwined with the charged conduct and (2) any evidentiary errors were harmless.
Because we find admissibility properly supported under Rule 404(b), we need not examine the
government’s alternative arguments.
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B.    The District Court Did Not Err in Sentencing Chappelle as an Armed
      Career Criminal and Career Offender.

      Chappelle argues that the district court erred in sentencing him as an armed

career criminal under ACCA and as a career offender under § 4B1.1(a).

Specifically, he argues that his prior convictions for aggravated assault under

Florida law do not qualify as violent felonies under ACCA or crimes of violence

under § 4B1.1(a).

      Our precedent forecloses Chappelle’s arguments. In Turner v. Warden,

Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), we held that a Florida

conviction of aggravated assault under Fla. Stat. § 784.021 categorically qualifies

as a violent felony. Because the terms “violent felony” under ACCA and “crime of

violence” under § 4B1.2(a) are “virtually identical,” our decision in Turner also

dictates that a Florida aggravated assault conviction qualifies as a crime of

violence under the Sentencing Guidelines. See United States v. Alexander, 609

F.3d 1250, 1253 (11th Cir. 2010) (internal quotation marks omitted).

      Although Chappelle is correct that Turner’s continued validity has been

questioned in light of intervening Supreme Court decisions, our prior precedent

rule binds us to follow Turner. See United States v. Golden, 854 F.3d 1256, 1256-

57 (11th Cir. 2017) (“But even if Turner is flawed, that does not give us, as a later

panel, the authority to disregard it.”). Recent cases have affirmed Turner’s

continued validity. See, e.g., United States v. Deshazior, 882 F.3d 1352, 1355
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(11th Cir. 2018). Accordingly, the district court did not err in classifying

Chappelle as an armed career criminal under ACCA or a career offender under

§ 4B1.1(a).

                               IV.   CONCLUSION

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.




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