United States v. Aunyis Cherry

USCA11 Case: 22-13968 Document: 35-1 Date Filed: 02/05/2025 Page: 1 of 7

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13968

Non-Argument Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AUNYIS CHERRY,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:21-cr-00187-KKM-JSS-1

____________________

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2 Opinion of the Court 22-13968

Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges.

PER CURIAM:

Appellant Aunyis Cherry appeals his 275-month sentence,

which was imposed after a jury found him guilty of being a felon

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

sentencing, the district court determined that he had three prior

convictions for serious drug offenses and thus was subject to an en-

hanced sentence under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e).

On appeal, Cherry challenges the application of the ACCA

enhancement. He argues that the district court erred in treating his

three Florida state convictions for sale or delivery of cocaine as se-

rious drug offenses under the ACCA because, at the time he com-

mitted those offenses, Florida law defined cocaine more broadly

than federal law. He has filed a motion for summary reversal,

which the government does not oppose. We grant the motion, va-

cate Cherry’s sentence, and remand for resentencing.

I.

In November 2020, law enforcement officers found Cherry,

a convicted felon, in possession of a firearm and ammunition. A

grand jury charged Cherry with being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). After

a trial, a jury found Cherry guilty of this crime. 1

1 The grand jury also charged Cherry with possessing marijuana with intent

to distribute and knowingly possessing a firearm in furtherance of a drug-

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22-13968 Opinion of the Court 3

Before sentencing, a probation officer prepared a presen-

tence investigation report (“PSR”). When Cherry possessed the

firearm, the statutory maximum sentence for possession of a fire-

arm by a convicted felon was generally 10 years’ imprisonment.2

See 18 U.S.C. § 924(a)(2) (2020). But the PSR reported that Cherry

faced an enhanced statutory penalty range under the ACCA be-

cause he had three previous convictions in Florida state court for

the sale or delivery of cocaine. The PSR stated that these convic-

tions arose out of offenses that occurred on April 25, 2017, May 2,

2017, and May 9, 2017. After applying the ACCA enhancement, the

PSR calculated Cherry’s guidelines range as 262 to 327 months’ im-

prisonment.

Cherry objected to the ACCA enhancement, arguing only

that it should not apply because a jury had not determined beyond

a reasonable doubt that his three predicate offenses occurred on

different occasions. At the sentencing hearing, the district court

overruled Cherry’s objection, applied the ACCA enhancement,

and adopted the PSR’s guidelines calculation. The court imposed a

sentence of 275 months’ imprisonment. This is Cherry’s appeal.

trafficking crime. Because the jury found Cherry not guilty of these offenses,

we discuss them no further.

2 After Cherry committed the offense, Congress raised the statutory maximum

sentence to 15 years’ imprisonment. See Bipartisan Safer Communities Act,

Pub. L. No. 117-159 § 12004(c), 136 Stat. 1313, 1327 (2022).

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4 Opinion of the Court 22-13968

II.

As relevant here, summary disposition is appropriate when

“the position of one of the parties is clearly right as a matter of law

so that there can be no substantial question as to the outcome of

the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th

Cir. 1969). 3

We generally “review de novo whether a conviction qualifies

as a serious drug offense under the ACCA.” United States v. White,

837 F.3d 1225, 1228 (11th Cir. 2016). But when a defendant raises

an issue for the first time on appeal, we review for plain error only.

United States v. Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012). To

show plain error, a defendant must establish: (1) there was error;

(2) that was plain; (3) that affected the defendant’s substantial

rights; and (4) that seriously affected the fairness, integrity, or pub-

lic reputation of judicial proceedings. Id.

III.

Federal law prohibits those who have been convicted of a

felony offense from owning or possessing a firearm. See 18 U.S.C.

§ 922(g). The ACCA provides that a defendant who violates

18 U.S.C. § 922(g) faces an enhanced penalty range if he “has three

previous convictions . . . for a violent felony or a serious drug

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

adopted as binding precedent all decisions of the former Fifth Circuit issued

prior to October 1, 1981.

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22-13968 Opinion of the Court 5

offense, or both, committed on occasions different from one an-

other.” Id. § 924(e)(1).

We apply the categorical approach to determine whether a

defendant’s state conviction is a serious drug offense under the

ACCA. United States v. Conage, 976 F.3d 1244, 1250 (11th Cir. 2020).

Under the categorical approach, we consider the statutory defini-

tion of the state offense rather than the facts of the crime itself. Id.

A state conviction “qualifies as a serious drug offense only if the

state statute under which the defendant was convicted defines the

offense in the same way as, or more narrowly than, the ACCA’s

definition of a serious drug offense.” Id. For a state drug conviction

to qualify as a serious drug offense, “the [s]tate’s definition of the

drug in question [must] match[] the definition under federal law.”

Brown v. United States, 602 U.S. 101, 107 (2024) (internal quotation

marks omitted). The Supreme Court has held that when deciding

whether the federal and state definitions match, a court must look

at the definitions that applied at the time the defendant committed

the underlying state crime. Id. at 108–09, 111.

In his unopposed motion for summary reversal, Cherry ar-

gues that the district court erred in applying the ACCA enhance-

ment. According to Cherry, his Florida convictions for selling or

delivering cocaine do not qualify as serious drug offenses because

when he committed the offenses there was a mismatch in how fed-

eral law and Florida law defined cocaine. We review this issue for

plain error because Cherry failed to raise it in the district court. See

Johnson, 694 F.3d at 1195. Applying a plain error standard, we

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6 Opinion of the Court 22-13968

conclude that summary reversal is appropriate because there is no

substantial question as to the outcome of the appeal.

The district court erred in treating Cherry’s Florida convic-

tions for selling or delivering cocaine, which arose out of offenses

that occurred in April and May 2017, as serious drug offenses. The

Supreme Court previously explained that the federal definition of

cocaine encompassed ioflupane 4 only until 2015 while the Florida

definition of cocaine continued to cover ioflupane until July 2017.

See Brown, 602 U.S. at 107–09. Because Florida’s definition of co-

caine was broader than the definition under federal law when

Cherry committed the offenses, they do not qualify as serious drug

offenses for purposes of the ACCA. See id. at 118.

And the district court’s error was plain. As we have previ-

ously explained, “an intervening decision by this Court or the Su-

preme Court squarely on point may make an error plain.” United

States v. Jones, 743 F.3d 826, 829–30 (11th Cir. 2014) (internal quota-

tion marks omitted). The Supreme Court’s recent decision in

Brown made plain that the district court erred in treating Cherry’s

Florida cocaine convictions as serious drug offenses.

This error affected Cherry’s substantial rights because “there

is a ‘reasonable probability’ that he would have received a lighter

sentence but for the error.” Id. at 830. Our conclusion that Cherry’s

4 Ioflupane is a “radioactive cocaine derivative . . . that is the active pharma-

ceutical ingredient in a drug used to diagnose patients who are suspected to

have Parkinson’s disease.” Brown, 602 U.S. at 108.

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Florida cocaine convictions do not qualify as serious drug offenses

means that no ACCA enhancement applied. See 18 U.S.C.

§ 924(e)(1). And without the enhancement, Cherry’s maximum

sentence would be 10 years’ imprisonment, which is substantially

shorter than the 275-month sentence that he is currently serving.

See Jones, 743 F.3d at 830 (concluding that the erroneous application

of an ACCA enhancement affected the defendant’s substantial

rights when “the district court will be statutorily compelled to give

[the defendant] a shorter sentence on remand”). And because he

was “given a . . . sentence that exceeds the statutory maximum that

should have been applied,” we conclude that the error also “seri-

ously affected the fairness, integrity, or public reputation of the ju-

dicial proceedings in this case.” Id. (internal quotation marks omit-

ted).

Because there is no substantial question that the district

court plainly erred in applying the ACCA enhancement, we grant

Cherry’s unopposed motion for summary reversal, vacate his sen-

tence, and remand for resentencing.

VACATED AND REMANDED.