              Case: 12-13264       Date Filed: 04/05/2013   Page: 1 of 9


                                                               [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-13264
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 6:10-cr-00131-JA-GJK-1



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                         versus

FRANKLIN JOHNSON,
a.k.a. "J",
a.k.a. Franklyn Bonnel Johnson,
a.k.a. Franklin Bonnell Johnson,


                                                                Defendant-Appellant.

                          ________________________

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

                                    (April 5, 2013)

Before CARNES, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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      Franklin Johnson appeals his 180-month sentence, the mandatory minimum

prescribed by the Armed Career Criminal Act, after he pleaded guilty to unlawfully

possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Johnson contends that the district court erred in imposing a sentence enhancement

under the ACCA and U.S.S.G. § 4B1.4. He also challenges the district court’s

calculation of his criminal history score under the sentencing guidelines.

                                          I.

      Johnson was indicted on four counts of distributing either cocaine or crack

cocaine, in violation of 21 U.S.C. § 841(a)(1), and two counts of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pursuant to a

written plea agreement, Johnson pleaded guilty to one of the felon-in-possession

counts in exchange for the dismissal of the remaining counts. In his plea

agreement, Johnson admitted that he sold cocaine, crack cocaine, and firearms to

an undercover agent, and that he had seven prior felony convictions in Florida,

including a 1998 conviction for the sale or delivery of cocaine, a 2004 conviction

for aggravated assault on a police officer, and a 2004 conviction for being a

principal in the sale or delivery of a controlled substance within 1,000 feet of a

church.

      Johnson’s presentence investigation report calculated a base offense level of

26 under U.S.S.G. § 2K2.1(a)(1), with a four-level increase under §


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2K2.1(b)(6)(B) for possessing a firearm in connection with a felony drug

trafficking offense and a three-level reduction for acceptance of responsibility,

yielding an adjusted offense level of 27. The PSR indicated that Johnson had 18

prior convictions, including four entered on June 6, 2000, and another two entered

on June 30, 2004, and the PSR assessed a total of 15 criminal history points, which

resulted in a criminal history category of VI. The PSR concluded, however, that

Johnson was subject to a sentencing enhancement under the ACCA and U.S.S.G. §

4B1.4 because he had three prior convictions for a violent felony or serious drug

offense—namely, his convictions for the sale or delivery of cocaine, aggravated

assault, and being a principal in the sale or delivery of a controlled substance.

Based on his status as an armed career criminal, the PSR assigned an enhanced

base offense level of 34, a total offense level of 31 after the three-level adjustment

for acceptance of responsibility, and an automatic criminal history category of VI

under U.S.S.G. § 4B1.4(c)(2) because he possessed a firearm in connection with a

controlled substance offense. Johnson’s advisory guidelines range was 188 to 235

months imprisonment, with a mandatory minimum sentence of 15 years under the

ACCA. See 18 U.S.C. § 924(e)(1).

      Johnson objected to his designation as an armed career criminal, arguing that

his aggravated assault conviction did not qualify as a violent felony and his

conviction for being a principal in the sale or delivery of a controlled substance did


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not qualify as a serious drug offense. He also objected to the calculation of his

criminal history score, asserting that the convictions for which he was sentenced on

the same day should not be scored separately and that the government failed to

prove that he was the person convicted of a number of the offenses listed in the

PSR. The district court overruled Johnson’s objections and adopted the PSR’s

guidelines calculations. The court, however, varied downward from the calculated

guidelines range, sentencing Johnson to the mandatory minimum sentence of 180

months imprisonment.

                                         II.

      Johnson contends that the district court erred in imposing a sentencing

enhancement because his Florida convictions for being a principal in the sale or

delivery of a controlled substance and aggravated assault on a police officer are not

qualifying offenses under the ACCA.

      We review de novo whether a conviction qualifies as a predicate offense

under the ACCA. United States v. James, 430 F.3d 1150, 1153 (11th Cir. 2005).

The ACCA imposes an enhanced 15-year mandatory minimum sentence for any

convicted felon who possesses a firearm or ammunition after having been

convicted of three violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1).

The ACCA defines a “serious drug offense,” in relevant part, as “an offense under

State law, involving manufacturing, distributing, or possessing with intent to


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manufacture or distribute, a controlled substance [as defined by 21 U.S.C. § 802],”

which carries a maximum term of at least ten years imprisonment. 18 U.S.C. §

924(e)(2)(A)(ii). A “violent felony” is defined, among other things, as any crime

punishable by more than one year imprisonment that “has as an element the use,

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

Id. § 924(e)(2)(B)(i). In determining whether a conviction qualifies as a predicate

offense for ACCA purposes, courts generally apply a categorical approach, looking

no further than the fact of conviction and the statutory definition of the offense.

United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010).

      Johnson asserts that his conviction under Fla. Stat. § 893.13(1)(e) for being a

principal in the sale or delivery of a controlled substance is not a “serious drug

offense” within the meaning of the ACCA because it does not involve the

manufacture or distribution of a controlled substance, and the ACCA’s definition

does not specifically mention “selling” or “delivery.” Florida Statute §

893.13(1)(e) makes it unlawful for a person to “sell, manufacture, or deliver . . . a

controlled substance . . . within 1,000 feet of a physical place of worship . . . .”

Fla. Stat. Ann. § 893.13(1)(e). Contrary to Johnson’s contention, a conviction

under the statute for selling or delivering a controlled substance necessarily

amounts to “distributing” a controlled substance within the meaning of the ACCA.

Under federal law, the term “distribute” means “to deliver,” which, in turn, denotes


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any “transfer of a controlled substance.” 21 U.S.C. § 802(8), (11). The fact that

the ACCA does not specifically use the terms “sell” or “deliver” is irrelevant

because distribution of a controlled substance encompasses, as a matter of

definition, any method of transferring a controlled substance, including sale or

delivery. Johnson’s Florida conviction for being a principal in the sale or delivery

of a controlled substance does qualify as a serious drug offense under the ACCA.

      Johnson also contends that his conviction for aggravated assault does not

qualify as a violent felony under ACCA. Florida’s aggravated assault statute, Fla.

Stat. § 784.21, defines the offense as an assault that is either committed “[w]ith a

deadly weapon without intent to kill” or “[w]ith an intent to commit a felony.” Fla.

Stat. Ann. § 784.021(1). An assault, in turn, involves “an intentional, unlawful

threat by word or act to do violence to the person of another, coupled with an

apparent ability to do so, and doing some act which creates a well-founded fear in

such other person that such violence is imminent.” Id. § 784.011. If the victim of

an aggravated assault is a law enforcement officer, the offense is enhanced from a

third-degree felony to a second-degree felony, which is punishable by up to 15

years imprisonment. Id. §§ 784.07(2)(c), 775.082(3)(c). Johnson’s argument is

foreclosed by our recent decision in Turner v. Warden Coleman FCI (Medium),

No. 10-12094, slip op. at 16–17 (11th Cir. Feb. 22, 2013), which held that a

Florida conviction for aggravated assault categorically qualifies as a violent felony


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under the ACCA because, by requiring an “intentional, unlawful threat by word or

act to do violence to the person of another it,” it necessarily includes “as an

element the . . . threatened use of physical force against the person of another.”

      Johnson nevertheless contends that neither conviction can, or should, be

used to enhance his sentence because he is actually innocent of his aggravated

assault conviction and Fla. Stat. § 893.13(1)(e) is facially unconstitutional, as it

lacks a mens rea requirement, regulates inherently innocent conduct, and imposes

unduly harsh penalties. A defendant in a federal sentencing proceeding, however,

may not collaterally attack the validity of a prior state conviction used to enhance

his sentence under the ACCA unless that conviction was obtained in violation of

his right to counsel. Custis v. United States, 511 U.S. 485, 487, 114 S.Ct. 1732,

1734 (1994). Because Johnson does not allege that he was denied counsel during

the relevant state criminal proceedings, he cannot collaterally challenge the validity

of his prior convictions in this proceeding. Accordingly, the district court did not

err in determining that Johnson qualified for an enhanced sentence under the

ACCA.

                                               II.

      Johnson also challenges the district court’s calculation of his criminal

history category, arguing that the court erred in separately scoring several of his

prior convictions and that the government failed to prove that he was convicted of


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a number of the offenses listed in the PSR. The government responds that

Johnson’s claim is barred by the appeal waiver contained in his plea agreement,

which precludes Johnson from challenging his sentence “on any ground, including

the ground that the [district court] erred in determining the applicable guidelines

range,” except on grounds that it exceeds the guidelines range as determined by the

district court, exceeds the statutory maximum, or violates the Eighth Amendment. 1

        Sentence appeal waivers are valid and enforceable when made knowingly

and voluntarily. United States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir.

1993). To establish that an appeal waiver was knowing and voluntary, the

government must show either that (1) the district court specifically questioned the

defendant about the waiver during the plea colloquy, or (2) the record makes clear

that the defendant otherwise understood the full significance of the waiver. Id. at

1351.

        Johnson knowingly and voluntarily waived his right to appeal the district

court’s calculation of the applicable guidelines range, which includes the

computation of his criminal history score. During his plea colloquy, the district

court reviewed the appeal waiver and Johnson indicated that he understood that he

        1
          The government, for good reason, does not contend that the appeal waiver bars
Johnson’s challenge to the ACCA enhancement. Absent that enhancement, Johnson was subject
to a statutory maximum sentence of 10 years imprisonment. 18 U.S.C. § 924(a)(2). Because the
ACCA imposes a mandatory minimum sentence of 15 years imprisonment, which exceeds the
otherwise applicable statutory maximum, Johnson’s challenge to the enhancement squarely falls
within the appeal-waiver exception for challenges to a sentence on the ground that it exceeds the
statutory maximum.
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was giving up his right to challenge his sentence except on the grounds specifically

listed in the plea agreement. Because Johnson’s challenge to the calculation of his

criminal history score does not fall within any of the enumerated exceptions to the

appeal waiver, his argument is barred. Moreover, even if Johnson had not waived

the issue, any error that the district court may have committed in calculating his

criminal history score is harmless. Because he was properly classified as an armed

career criminal and possessed a firearm in connection with a controlled substance

offense, Johnson would have had a criminal history category of VI under U.S.S.G.

§ 4B1.4(c)(2), regardless of his criminal history score. See U.S.S.G. § 4B1.4(c)(2).

      For these reasons, we affirm the district court’s application of the ACCA

sentencing enhancement and dismiss Johnson’s appeal to the extent that he

challenges the calculation of his criminal history score under the sentencing

guidelines.

      AFFIRMED IN PART, DISMISSED IN PART.




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