United States v. Cordell Felix

Case: 16-16457 Date Filed: 11/08/2017 Page: 1 of 17

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-16457

Non-Argument Calendar

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D.C. Docket No. 2:15-cr-00102-SPC-CM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CORDELL FELIX,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 8, 2017)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:

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Following a bench trial on stipulated facts, Defendant Cordell Felix was

convicted of possession of a firearm by a convicted felon and sentenced to 180

months’ imprisonment. He now appeals, arguing that the district court erred by

denying his motion to suppress evidence found during a Terry 1 stop. He also

challenges his sentence on various grounds. After careful review, we affirm.

I. BACKGROUND

A. Facts

At approximately 12:30 AM, on June 20, 2015, Officer Nicholas Ursitti of

the Fort Myers Police Department responded to a dispatch call regarding a robbery

that had occurred on Palm Beach Boulevard. 2 Officer Ursitti was familiar with

that neighborhood because robberies frequently occur there and the suspects often

flee into the surrounding neighborhoods. The dispatch call identified the robbery

suspects as two black males who appeared to be young or in their twenties, and

who were last seen wearing black shirts and headed south toward Redbone’s Bar

and Grill.

While en route to Redbone’s, Officer Ursitti observed an individual, later

identified as Defendant, who matched the description of the robbery suspects.

1

Terry v. Ohio, 392 U.S. 1 (1968).

2

The facts are taken from the testimony and evidence presented at the suppression hearing,

viewed in the light most favorable to the prevailing party, which here is the Government. See

United States v. Bautista-Silva, 567 F.3d 1266, 1271 (11th Cir. 2009).

2

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Specifically, he was a black male wearing a black shirt and black pants. Officer

Ursitti pulled his patrol car in front of Defendant, exited his vehicle, and asked

Defendant to come speak to him about the incident that had occurred on Palm

Beach Boulevard. Soon after providing his ID, which showed that he resided in a

neighborhood located 20 minutes away, Defendant made a phone call and began

avoiding Officer Ursitti’s questions. Defendant then dropped to his knees and

hunched over appearing to conceal something.

Footage from Officer Ursitti’s body camera video showed Defendant

squatting on the ground and talking on the phone with someone he was referring to

as his mother. Officer Ursitti repeatedly told Defendant that he needed to pat him

down for firearms and then Defendant could go on his way. Defendant emptied his

pockets without being instructed to do so. After Defendant refused to comply with

Officer Ursitti’s instruction to lift his shirt, Officer Ursitti and other officers who

had arrived at the scene restrained Defendant and found a firearm in his front

waistband. Officers identified Defendant as a convicted felon and placed him

under arrest.3

3

At a subsequent showup, the robbery victim did not identify Defendant as the perpetrator.

3

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B. Procedural History

A federal grand jury subsequently charged Defendant with (1) possession of

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

924(e)(1), and (2) possession of cocaine, in violation of 21 U.S.C. § 844(a).

Defendant moved to suppress his statements and the evidence (including the

gun) seized from his person during the stop. He argued that Officer Ursitti did not

have reasonable suspicion to stop him. At the suppression hearing, Officer Ursitti

testified about the details of the stop. Defendant called a criminal investigator who

testified that Defendant was stopped by Officer Ursitti approximately one-half of a

mile away from the location of the alleged robbery.

The district court denied the suppression motion. Specifically, the district

court determined that Officer Ursitti had reasonable suspicion to stop Defendant

because Defendant matched the description of the robbery suspects. Moreover,

Defendant began acting nervously and dropped to his knees when Officer Ursitti

approached him. Consequently, the district court determined that Officer Ursitti

did not violate Defendant’s Fourth Amendment rights.

Defendant proceeded to a bench trial based on stipulated facts. Defendant

moved for judgment of acquittal on the ground that § 922(g) was unconstitutional.

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The district court denied Defendant’s motion and adjudicated him guilty on Count

1. 4

In anticipation of sentencing, the probation officer prepared a Presentence

Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of

24, pursuant to U.S.S.G. § 2K2.1(a)(2). Because Defendant was an armed career

criminal under U.S.S.G. § 4B1.4, his offense level was enhanced to 33. The PSR

stated in relevant part that Defendant had the following prior convictions: (1) an

Illinois armed robbery conviction in 1999; (2) a Florida sale of cocaine conviction

in 2004; (3) Florida convictions for sale of cocaine and marijuana in 2007; and

(4) a Florida sale of cocaine conviction in 2007. With a 3-level reduction for

acceptance of responsibility, Defendant’s total offense level was 30. Based on a

total of 30 and a criminal history category of VI, Defendant’s guideline range was

168 to 210 months’ imprisonment. However, given the application of the armed-

career-criminal enhancement, Defendant’s guideline range became 180 to 210

months’ imprisonment.

Defendant objected to his designation as an armed career criminal, arguing

that his two drug convictions in 2007 did not occur on separate occasions. He also

4

With the agreement of the Government, the district court granted Defendant’s motion for

judgment of acquittal as to Count 2.

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argued that his armed robbery conviction was not a violent felony under the Armed

Career Criminal Act (“ACCA”).

At the sentencing hearing, Defendant reiterated the above objections. As to

Defendant’s armed robbery conviction, the district court determined that armed

robbery under Illinois law qualified as a violent felony because it contained an

element of use, attempted use, or threatened use of physical force against the

person of another. In light of that ruling, the district court noted that it need not

consider whether the 2007 drug convictions occurred on separate occasions.

Nevertheless, the district court also concluded that Defendant’s sale of cocaine and

sale of cocaine and marijuana convictions were separate offenses for purposes of

the ACCA. Explaining that Defendant’s PSR incorrectly stated that his criminal

history category was a VI, rather than a IV, the district court recalculated

Defendant’s guideline range as 135 to 168 months’ imprisonment. However,

based on his armed-career-criminal designation, the guideline range became 180

months. The district court consequently sentenced Defendant to 180 months’

imprisonment. This appeal followed.

II. DISCUSSION

A. Motion to Suppress

Defendant argues that Officer Ursitti’s Terry stop violated the Fourth

Amendment because it was not supported by reasonable suspicion that Defendant

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had engaged in criminal activity. Specifically, Defendant asserts that the fact that

he may have met what was a broad description of the suspects did not constitute a

particularized fact sufficient to support a finding of reasonable suspicion.

“Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of law to the facts de novo.” United States v. Lewis, 674 F.3d 1298,

1302–03 (11th Cir. 2012). The Fourth Amendment protects an individual against

unreasonable searches and seizures. U.S. CONST. amend. IV. “Not all interactions

between law enforcement and citizens, however, implicate the scrutiny of the

Fourth Amendment.” United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir.

2011). A seizure occurs only where law enforcement uses physical force or some

show of authority to restrain the liberty of an individual. Id.

An officer is permitted to seize a suspect for a brief, investigatory stop if the

officer has a reasonable suspicion that the subject was involved in, or is about to be

involved in criminal activity, and the stop “was reasonably related in scope to the

circumstances which justified the interference in the first place.” Id. at 1186

(quoting Terry v. Ohio, 392 U.S. 1, 19–20, 30 (1968)). “Reasonable suspicion is

determined from the totality of the circumstances and from the collective

knowledge of the officers involved in the stop.” United States v. Williams, 876

F.2d 1521, 1524 (11th Cir. 1989) (citation omitted). “An inchoate and

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unparticularized suspicion or hunch of criminal activity is not sufficient to meet the

reasonable suspicion standard.” United States v. Lopez-Garcia, 565 F.3d 1306,

1313 (11th Cir. 2009) (quotation omitted).

Based on the totality of the circumstances, Officer Ursitti had reasonable

suspicion to stop Defendant. Officer Ursitti testified that he received a dispatch

call at 12:21 on a Saturday night regarding an armed robbery involving two black

males with guns, wearing black shirts, who were last seen heading south and east

toward Redbone’s Bar and Grill, and who appeared to be in their twenties. The

officer was aware that would-be robbers targeted this area because it contained a

number of bars frequented on weekend evenings by Hispanic immigrants who had

just been paid in cash. He further knew that, after robbing their victims, the

robbers frequently fled on foot into the surrounding neighborhoods. See Illinois v.

Wardlow, 528 U.S. 119, 124 (2000) (explaining that an individual’s presence in a

high-crime area is a relevant factor in the reasonable-suspicion analysis).

While driving through one of the surrounding neighborhoods en route to

Redbone’s, Officer Ursitti observed Defendant—a black male who was wearing all

black clothing—heading south only one-half mile from where the alleged robbery

had occurred a few minutes earlier.5 See United States v. Hunter, 291 F.3d 1302,

5

Defendant’s argument that he did not meet the description of the two suspects described in the

dispatch call because he was walking alone is unpersuasive, as the suspects could have split up.

8

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1306 (11th Cir. 2002) (stating that an individual’s proximity to illegal activity is

relevant to the reasonable-suspicion analysis). Defendant was walking in the area

and along the trajectory that Officer Ursitti anticipated the robbers would flee,

based on his familiarity with the neighborhood and the information provided by the

police dispatcher. Although Defendant had been walking south, once the officer

momentarily shone his light on Defendant and stopped the patrol car, Defendant

turned around and began walking north, but then turned back to face the car,

looked at his cell phone, and began making a call. Even before Officer Ursitti

made contact with Defendant, Defendant “started acting nervously and walking in

circles.”

Although the Government contends that the officer’s initial approach to

Defendant was a consensual encounter that was permissible in the absence of any

suspicion by the police of wrongdoing or danger posed by Defendant, the district

court concluded that Defendant was seized at the point at which Officer Ursitti

approached him; i.e., that through a show of authority, the officer had restrained

Defendant’s movement. We will assume that the district court is correct on this

point, which means that to justify the investigatory stop, reasonable suspicion was

required.

He also asserts that he was heading north, not south, when he encountered Officer Ursitti.

However, the video footage from the dash cam shows otherwise.

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The district court concluded that Officer Ursitti did possess reasonable

suspicion sufficient to engage in a brief investigatory stop of Defendant, and

thereafter to frisk him for a weapon. See United States v. Sokolow, 490 U.S. 1, 9

(1989) (“Any one of these factors is not by itself proof of any illegal conduct and is

quite consistent with innocent travel. But we think taken together they amount to

reasonable suspicion.”). And although Defendant argues that his nervous behavior

after Officer Ursitti approached him is irrelevant to the reasonable-suspicion

analysis because he had already been seized at that point, we do not reach that

argument because we conclude that—even leaving aside subsequent behavior

preceding the frisk which behavior the Government characterizes as quite

suspicious and provocative—Officer Ursitti had reasonable suspicion to engage in

a brief investigatory stop of Defendant at the outset. As the district court noted,

“[s]topping an individual who matches the description of an armed robber in

relative close proximity to the crime scene, within ten minutes of the crime

occurring, and patting them down for weapons is well within the bounds of the

Fourth Amendment and Terry.” Accordingly, we affirm the district court’s order

denying Defendant’s motion to suppress.

B. Constitutionality of 18 U.S.C. § 922(g)

Defendant argues that his conviction under § 922(g) should be vacated

because it violates the Commerce Clause. However, as he readily concedes, this

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argument is foreclosed by binding precedent. See United States v. McAllister, 77

F.3d 387, 389–91 (11th Cir. 1996) (holding that § 922(g) does not violate

Congress’s power under the Commerce Clause).

C. ACCA Enhancement

Defendant further argues that his sentence was improperly enhanced under

the ACCA because (1) the Government failed to establish that his 2007 drug

convictions occurred on separate occasions, (2) his three drug convictions do not

qualify as serious drug offenses, and (3) his Illinois armed robbery conviction is

not a violent felony.

We review de novo whether a prior conviction qualifies as an ACCA-

predicate offense and whether the convictions occurred on separate occasions for

purposes of the ACCA. See United States v. Braun, 801 F.3d 1301, 1303 (11th

Cir. 2015); United States v. Proch, 637 F.3d 1262, 1265 (11th Cir. 2011). We

review constitutional challenges de novo. United States v. Rozier, 598 F.3d 768,

770 (11th Cir. 2010).

Under the ACCA, a defendant who violates § 922(g) is subject to a

mandatory minimum sentence of 15 years’ imprisonment if he has three prior

convictions for a violent felony or serious drug offense that were committed on

occasions different from one another. 18 U.S.C. § 924(e)(1); 18 U.S.C. § 922(g).

The Government bears the burden of proving by a preponderance of the evidence

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that the prior convictions “arose out of a separate and distinct criminal episode.”

United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir. 2010) (quotation omitted).

To prove that the offenses occurred on separate occasions, the Government must

use Shepard 6-approved documents, such as the charging documents, plea

agreements and colloquies, or jury instructions. Id. at 1332–33.

Here, the district court determined that Defendant was an armed career

criminal based on a 1999 conviction in Illinois for armed robbery, a 2004

conviction in Florida for sale of cocaine, a 2007 conviction in Florida for sale of

cocaine, and a 2007 conviction in Florida for sale of cocaine and marijuana.

Defendant argues first that the Government did not meet its burden of proving that

his two drug convictions in 2007 occurred on separate occasions. We disagree.

The charging documents list a separate and distinct date for each drug

offense: May 31, 2006, and June 1, 2006. We consider offenses distinct “[i]f

some temporal break happens between two offenses.” Proch, 637 F.3d at 1265.

Although the charging documents stated that the offenses occurred “on or about”

those dates, the Government was only required to demonstrate by a preponderance

of the evidence that the offenses occurred on separate occasions. Sneed, 600 F.3d

at 1329. The inclusion of two distinct dates on the charging documents is “reliable

and specific evidence” demonstrating that the two drug offenses “more likely than

6

Shepard v. United States, 544 U.S. 13 (2005).

12

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not arose out of separate and distinct episodes.” Cf. United States v. McCloud, 818

F.3d 591, 596 (11th Cir. 2016) (quotations omitted) (“When it is equally likely that

the crimes were committed simultaneously as it is that they were committed

successively, the Government has not met its evidentiary burden under the

preponderance of the evidence standard.”); see also United States v. Spears, 443

F.3d 1358, 1360 (11th Cir. 2006) (concluding that two robberies that occurred

minutes apart on the same date were two separate felonies for purposes of the

ACCA’s separate-occasions requirement).

Moreover, Defendant’s reliance on the Supreme Court’s decisions in Mathis

v. United States, 136 S. Ct. 2243 (2016) and Descamps v. United States, 133 S. Ct.

2276 (2013) to argue that the district court erred by relying on non-elemental facts

from the Shepard documents to determine that his prior drug offenses occurred on

separate occasions is misplaced. Indeed, we have previously held that “a district

court [has the] authority to determine ‘the factual nature’ of prior convictions for

ACCA purposes, ‘including whether they were committed on different occasions,’

so long as the court limits itself to Shepard-approved documents.” See United

States v. Overstreet, 713 F.3d 627, 635 (11th Cir. 2013); accord United States v.

McCloud, 818 F.3d 591, 595 (11th Cir. 2016). Mathis and Descamps examined

the issue of when sentencing courts may apply the “modified categorical approach”

to determine if a crime qualifies as an ACCA violent felony. Mathis, 136 S. Ct. at

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2253; Descamps, 133 S. Ct. at 2282. Neither decision addressed whether a district

court may refer to Shepard documents when determining whether two offenses

occurred on separate occasions for purposes of the ACCA enhancement. See

Mathis, 136 S. Ct. at 2248–54; Descamps, 133 S. Ct. 2282–93. Because neither

Mathis nor Descamps are “clearly on point,” they do not overrule or undermine our

prior precedent to the point of abrogation. See United States v. Archer, 531 F.3d

1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding is binding on all

subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc.”).

Defendant also argues for the first time on appeal that his three drug

convictions under Florida Statute § 893.13(1) do not qualify as serious drug

offenses. Because Defendant raises this argument for the first time on appeal, our

review is limited to plain error.7 See United States v. Rosario-Delgado, 198 F.3d

1354, 1355 (11th Cir. 1999). We also note that Defendant arguably invited any

error by conceding before that district court that at least one of his 2007 drug

convictions qualified as a serious drug offense. See United States v. Silvestri, 409

F.3d 1311, 1337 (11th Cir. 2005) (explaining that a party invites an error when it

requests or explicitly agrees with the district court’s action). But regardless, as

7

To establish plain error, “there must be (1) an error (2) that is plain and (3) that has affected the

defendant’s substantial rights; and . . . (4) the error ‘seriously affects the fairness, integrity or

public reputation of judicial proceedings.’” United States v. Madden, 733 F.3d 1314, 1320 (11th

Cir. 2013) (alteration accepted).

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Defendant properly concedes, his argument is foreclosed by binding precedent.

See United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014) (holding that a

violation of Florida Statute § 893.13(1) for sale, manufacture, delivery, or

possession with intent to sell a controlled substance is a serious drug offense under

the ACCA).

As a final matter, Defendant’s argument that his sentence violates the Fifth

and Sixth Amendments because he was sentenced above the statutory maximum

based on facts that were not charged in the indictment or proven to a jury beyond a

reasonable doubt is foreclosed by the Supreme Court’s decision in Almendarez-

Torres v. United States, 523 U. S. 224 (1998). See Almendarez-Torres, 523 U.S. at

226–27 (concluding that the fact of a defendant’s prior conviction need not be

alleged in the indictment or proved to a jury beyond a reasonable doubt).

Because Defendant qualifies for the ACCA enhancement based on his three

prior convictions for serious drug offenses, we need not consider whether his

Illinois armed robbery conviction is a violent felony. See United States v. Gandy,

710 F.3d 1234, 1239 n.6 (11th Cir. 2013) (“Because we hold that these three

offenses qualify as violent felonies under the ACCA . . . . we need not address the

[G]overnment’s arguments that additional convictions qualify as violent felonies

under the ACCA.”). We therefore conclude that the district court properly

sentenced Defendant as an armed career criminal.

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III. CONCLUSION

Based on the foregoing reasons, Defendant’s conviction and sentence are

AFFIRMED.

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MARTIN, Circuit Judge, concurring:

I concur in the result.

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