United States v. Jimmy Diggs

USCA11 Case: 24-10232 Document: 40-1 Date Filed: 11/06/2025 Page: 1 of 9

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 24-10232

Non-Argument Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JIMMY DERRICK DIGGS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:23-cr-00007-SPC-NPM-1

____________________

____________________

No. 24-10233

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

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2 Opinion of the Court 24-10232

versus

JIMMY DERRICK DIGGS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:23-cr-00106-SPC-KCD-1

____________________

Before NEWSOM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

In this consolidated appeal, Jimmy Diggs appeals his sen-

tences for two counts of possession of a firearm as a convicted

felon, entered in separate cases. See 18 U.S.C. § 922(g)(1). Accord-

ing to Diggs, the district court erred by enhancing his sentence un-

der the Armed Career Criminal Act because his prior Florida co-

caine convictions were not serious drug offenses since Florida’s def-

inition of cocaine was categorically broader than the federal defini-

tion. Below, the issue he raised was that Florida’s cocaine defini-

tion included ioflupane while the federal definition did not. Now,

the issue he raises is that Florida’s definition of cocaine included

“any stereoisomer of cocaine,” while the federal definition only in-

cluded “optical and geometric isomers” of cocaine. Reviewing his

unpreserved isomer issue for plain error, we conclude that the dis-

trict court did not plainly err in treating Diggs’s prior convictions

as serious drug offenses under the Act.

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24-10232 Opinion of the Court 3

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Diggs pleaded guilty in two separate cases to possessing fire-

arms as a convicted felon. Diggs moved for a single sentencing

hearing, which the district court granted.

The probation office prepared a presentence report for both

cases, recommending that Diggs be sentenced as an armed career

criminal. According to the report, Diggs had at least three prior

convictions for violent felonies or serious drug offenses committed

on different occasions: (1) a 1990 Florida conviction for the sale,

manufacture, or possession with intent to sell cocaine; (2) a 1993

armed robbery; and (3) a 2011 Florida conviction for the sale of co-

caine within 1,000 feet of a specified area.

Diggs objected to the designation as an armed career crimi-

nal, asserting that his drug convictions were not serious drug of-

fenses under the Act because Florida’s definition of cocaine was

categorically broader than the federal definition. Specifically, he

contended that, at the time he committed the predicate offenses,

Florida’s drug schedules included ioflupane while the federal drug

schedules did not. Compare Fla. Stat. § 893.03(2)(a)(4) (1990); id.

§ 893.03(2)(a)(4) (2011) to 21 U.S.C. § 812 Sched. II at (a)(4) (1990);

id. § 812 Sched. II at (a)(4) (2011). The district court overruled

Diggs’s objection because it was foreclosed by our decision in

United States v. Jackson, 55 F.4th 846 (11th Cir. 2022), aff’d sub nom.,

Brown v. United States, 602 U.S. 101 (2024). Adopting the presen-

tence report, the district court sentenced Diggs under the Act as an

armed career criminal.

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Diggs now appeals his sentence. This time, however, he

contends that Florida’s cocaine definition was overbroad because

it encompassed “stereoisomers,” while the federal definition in-

cluded only “optical and geometric isomers.” Compare Fla. Stat.

§ 893.03(2)(a)(4) (1990); id. § 893.03(2)(a)(4) (2011) to 21 U.S.C.

§ 812 Sched. II at (a)(4) (1990); id. § 812 Sched. II at (a)(4) (2011).

Reviewing the issue for plain error, we affirm the district court’s

sentence.

STANDARD OF REVIEW

We review unpreserved challenges for plain error. United

States v. Laines, 69 F.4th 1221, 1229 (11th Cir. 2023).

DISCUSSION

The Armed Career Criminal Act requires any person who

violates 18 U.S.C. section 922(g) to serve a mandatory minimum

imprisonment sentence of fifteen years when the defendant is an

“armed career criminal,” meaning he has three prior convictions

for violent felonies or serious drug offenses committed on separate

occasions. 18 U.S.C. § 924(e)(1). A “prior state drug conviction

constitutes” a predicate conviction under the Act “if the drugs on

the federal and state schedules matched when the state drug of-

fense was committed.” Brown, 602 U.S. at 119.

In making this determination, we apply a categorical ap-

proach and consider the statutory definition of the state offense ra-

ther than the facts of the crime itself. Jackson, 55 F.4th at 850. A

state conviction qualifies as a predicate under the Act only if the

state statute under which the conviction occurred defines the

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24-10232 Opinion of the Court 5

offense in the same way as, or more narrowly than, the federal def-

inition of a “serious drug offense.” Id. That is, “all the controlled

substances covered by the state law must also be controlled sub-

stances under federal law.” Laines, 69 F.4th at 1233.

Here, Diggs contends that his Florida convictions do not

qualify as serious drug offenses because Florida’s cocaine definition

was broader than the federal definition. Specifically, Diggs asserts

that Florida’s definition encompassed “stereoisomers,” while the

federal definition included only “optical and geometric isomers.”

Compare Fla. Stat. § 893.03(2)(a)(4) (1990); id. § 893.03(2)(a)(4)

(2011) to 21 U.S.C. § 812 Sched. II at (a)(4) (1990); id. § 812 Sched. II

at (a)(4) (2011). But, as Diggs concedes, in the district court, he

focused only on Florida’s inclusion of ioflupane in its drug sched-

ules and he did not mention isomers. Thus, as we will explain, we

must review the isomer issue for plain error. And the district court

did not plainly err.

I.

Because both his issues relate to whether Florida’s cocaine

definition was overbroad, Diggs contends that he preserved the iso-

mer issue by raising the ioflupane issue in the district court. We

disagree.

“To preserve an issue for appeal, one must raise an objection

that is sufficient to apprise” the district court and the opposing

party of “the particular grounds upon which appellate relief will

later be sought.” United States v. Straub, 508 F.3d 1003, 1011 (11th

Cir. 2007) (quotation marks omitted). “[T]he district court is not

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expected to read minds or independently conceive of every possi-

ble argument a party might raise in support of an objection.” Id.

Instead, “[i]t is a defendant’s—or his counsel’s—burden to articu-

late the specific nature of his objection . . . so that the district court

may reasonably have an opportunity to consider it.” United States

v. Zinn, 321 F.3d 1084, 1090 (11th Cir. 2003); see also United States v.

Corbett, 921 F.3d 1032, 1043 (2019) (explaining that a defendant

must raise “specific factual and legal argumentation at every stage

of sentencing proceedings”). Thus, a defendant fails to preserve a

challenge to his sentence when his objections before the district

court are “substantively different” from what he raises on appeal.

See United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014).

Here, Diggs failed to preserve his challenge. Diggs’s io-

flupane objection that he raised before the district court was “sub-

stantively different” than the isomer objection he raises now. See

id. The isomer issue relies on different chemical compounds and

would require consideration of different arguments about the tex-

tual differences between the Florida and federal statutes—argu-

ments that the government did not have an opportunity to present

and the district court did not have the opportunity to consider—

and different evidence about isomer types in cocaine. See Zinn, 321

F.3d at 1090; cf. also Ramirez-Flores, 743 F.3d at 819-21 (finding an

argument below that a prior burglary conviction was not a crime

of violence because the judgment described the offense as a non-

violent burglary was “substantively different” than the argument

on appeal that the conviction was not a crime of violence because

the state burglary statute was not divisible and encompassed more

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24-10232 Opinion of the Court 7

conduct than the generic definition of burglary). Diggs could not

have “sufficiently apprise[d]” the district court or the government

of the isomer issue when he did not mention isomers during the

sentence hearing. Straub, 508 F.3d at 1011; see also Corbett, 921 F.3d

at 1043 (“When the statement is not clear enough to inform the

district court of the legal basis for the objection, the objection is not

properly preserved.” (cleaned up)). And the district court was not

sufficiently apprised. That’s why the district court’s only ruling

was that the ioflupane objection was foreclosed by binding prece-

dent under Jackson, a case that had nothing to do with isomers. See

55 F.4th at 850.

It was Diggs’s “burden to articulate the specific nature” of

his objection. Zinn, 321 F.3d at 1090. Since he failed to do so, it is

not preserved. Cf. id. at 1090 n.7 (finding that “[a]ppellant’s coun-

sel’s argument to the district court that polygraph testing was ‘not

a proper condition’ of supervised release was inadequate to

properly apprise the court of the very focused objections he . . .

raise[d] for the first time on appeal, including that the condition

violates his Fifth Amendment rights and improperly delegates au-

thority to the probation officer”). Thus, we review the isomer is-

sue for plain error.

II.

Diggs has not demonstrated that the district court plainly

erred by sentencing him under the Act. Under a plain error stand-

ard, the defendant must establish that an error occurred, the error

was “plain,” and the error affected the defendant’s substantial

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8 Opinion of the Court 24-10232

rights. Laines, 69 F.4th at 1229 (quotation marks omitted). “An

error is ‘plain’ if it is obvious or clear under current law.” Id. (quo-

tation marks omitted). “[W]here the explicit language of a statute

or rule does not specifically resolve an issue, there can be no plain

error where there is no precedent from the Supreme Court or this

Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d

1288, 1291 (11th Cir. 2003).

Diggs has not identified any binding precedent establishing

that the district court erred by determining that his Florida cocaine

convictions constituted serious drug offenses. In fact, our prece-

dent suggests the opposite is true. We have recently held that a

district court did not plainly err by classifying a defendant’s similar

prior conviction under Florida law as a serious drug offense under

the Act even though Florida’s cocaine definition included “any ste-

reoisomer of cocaine” and the federal definition “covered only ‘op-

tical and geometric isomers.’” Laines, 69 F.4th at 1233–35 (first

quoting Fla. Stat. § 893.03(a)(4)(1991); then quoting 21 U.S.C.

§ 812(c), Sched. II(a)(4) 1988 & Supp. 1991). We explained that the

defendant had not identified any authority demonstrating that

Florida’s cocaine definition was clearly overbroad, and thus, the de-

fendant had not met his burden to show plain error. Id. at 1233–

34. The same is true here.

CONCLUSION

Because the district court did not plainly err in treating

Diggs’s prior cocaine convictions as serious drug offenses under the

Act, we affirm his sentences.

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AFFIRMED.