           Case: 14-13365   Date Filed: 05/22/2015   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13365
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 9:14-cr-80020-JIC-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

KENNETH BULLARD,

                                              Defendant - Appellant.

                      ________________________

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

                             (May 22, 2015)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Kenneth Anthony Bullard appeals his 180-month sentence, imposed after he

pled guilty to possession of a firearm by a convicted felon. Mr. Bullard argues that

the district court erred in (1) finding that his prior conviction for possession of

cocaine with intent to sell under Fla. Stat. § 893.13(1)(a) qualified as a “serious

drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e); (2)

increasing his offense level under § 4B1.4(b)(3)(A) for possessing a firearm in

connection with a controlled substance offense; and (3) sentencing him above the

ten-year statutory maximum for his offense based on prior convictions that were

not alleged in the indictment. Having reviewed the record and the parties’ briefs,

and finding no reversible error, we affirm.

                                          I

      The district court sentenced Mr. Bullard as an armed career criminal under

the ACCA based on three qualifying predicate convictions: (1) a 1989 Florida

conviction for possession of cocaine with intent to sell, in violation of Fla. Stat. §

893.13(1)(a); (2) a 1991 Florida conviction for aggravated battery and battery on a

police officer, in violation of Fla. Stat. §§ 784.045 and 784.07; and (3) a 1999

federal conviction for possession of cocaine with intent to distribute. On appeal,

Mr. Bullard contends that his Florida conviction for possession of cocaine with

intent to sell under Fla. Stat. § 893.13(1)(a), is not a “serious drug offense” within

the meaning of the ACCA.


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      We review de novo whether a prior conviction qualifies as a “serious drug

offense” under the ACCA to enhance a defendant’s sentence. See United States v.

Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009). Under the ACCA, any person

who violates 18 U.S.C. § 922(g) and has at least three prior convictions from any

court “for a violent felony or a serious drug offense, or both, committed on

occasions different from one another” receives a mandatory minimum sentence of

15 years. 18 U.S.C. § 924(e)(1). A “serious drug offense” is defined, in pertinent

part, as follows:

             (ii) an offense under State law, involving manufacturing,
             distributing, or possessing with intent to manufacture or
             distribute, a controlled substance . . . , for which a
             maximum term of imprisonment of then years or more is
             prescribed by law.

18 U.S.C. § 922(e)(2)(A)(ii).

      In United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014), we held that

a conviction under Fla. Stat. § 893.13(1) is a “serious drug offense” under the

ACCA. Accordingly, we hold, for the reasons substantially stated in our opinion

in Smith, that the district court did not err in concluding that Mr. Bullard’s prior

conviction under § 893.13(1)(a) for possession of cocaine with intent to sell

qualified as a “serious drug offense” under the ACCA.




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                                        II

      Mr. Bullard also argues that the trial court erred in enhancing his sentence

under § 4B1.4(b)(3)(A) because there was insufficient evidence to establish that he

possessed a firearm “in connection with . . . a controlled substance offense.”

U.S.S.G. § 4B1.4(b)(3)(A).

      The pertinent facts of the offense are as follows. Riviera Beach police

officers obtained a search warrant to search Mr. Bullard’s residence after a

confidential source made two purchases of drugs from Mr. Bullard at the

residence. Mr. Bullard resided in the sole upper-floor apartment of a two-story

building. A search of the apartment yielded five grams of cocaine in two plastic

baggies in the master bedroom, as well as a digital scale in the kitchen. During

execution of the search warrant, officers observed a firearm in plain view on the

front passenger seat of a car parked in a parking stall in front of the apartment

complex. Mr. Bullard acknowledged that the car belonged to his mother and

admitted that the firearm belonged to him. Based on these facts, the district court

found “by a preponderance of the evidence that [Mr. Bullard] did possess a firearm

and ammunition in connection with a controlled substance offense.”

      “We review a sentencing court’s findings of fact for clear error and review

its application of the law to the facts de novo.” United States v. Young, 115 F.3d

834, 836 (11th Cir. 1997). Under the Sentencing Guidelines, a defendant who


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qualifies as an armed career criminal receives an offense level of “34, if the

defendant used or possessed the firearm or ammunition in connection with . . . a

controlled substance offense.” U.S.S.G. § 4B1.4(b)(3)(A). The Guidelines define

a “controlled substance offense” as “an offense . . . that prohibits the manufacture,

import, export, distribution, or dispensing of a controlled substance . . . or the

possession of a controlled substance . . . with intent to manufacture, import, export,

distribute, or dispense.” U.S.S.G. § 4B1.2(b).

      Even if Mr. Bullard could demonstrate that the district court erred in finding

that he “possess[ed] a firearm and ammunition in connection with a controlled

substance offense,” any such error would be harmless. Mr. Bullard qualified as an

armed career criminal under the ACCA, and as such, he was subject to a

mandatory minimum sentence of 180 months.            Even if Mr. Bullard had not

possessed the firearm at issue in connection with a controlled substance offense,

thereby reducing his advisory guideline range to 135-168 months, the district court

nevertheless would have been required to impose a sentence of at least 180

months—the exact sentence that Mr. Bullard received. Accordingly, no reversible

error has been shown.

                                         III

      Finally, Mr. Bullard contends that his sentence is unconstitutional because

the trial court relied on prior convictions not alleged in his indictment to increase


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his sentence above the ten-year statutory maximum.               We review such

constitutional sentencing issues de novo. See United States v. Steed, 548 F.3d 961,

968 (11th Cir. 2008). Because prior precedent forecloses Mr. Bullard’s argument,

we conclude that the district court’s imposition of the ACCA enhancement did not

violate Mr. Bullard’s constitutional rights. See, e.g., Smith, 775 F.3d at 1266 (“The

Constitution does not require that the government allege in its indictment and

prove beyond a reasonable doubt that [a defendant] had prior convictions for a

district court to use those convictions for purposes of enhancing a sentence.”)

(internal quotation marks omitted).

                                         IV

      Based on the foregoing, we affirm Mr. Bullard’s sentence.

      AFFIRMED.




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