United States v. Nishera Johnson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 13, 2024
• Docket: 23-11971
• Status: Unpublished

Opinion

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 1 of 14

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-11971 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NISHERA REMON JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 5:20-cr-00063-JA-PRL-2 ____________________ USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 2 of 14

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Before JORDAN, NEWSOM, and LAGOA, Circuit Judges. PER CURIAM: Nishera Johnson appeals from her convictions and total sen- tence of 200 months’ imprisonment for conspiracy to distribute and possess with intent to distribute illicit drugs—as well as possessing a firearm and ammunition as a convicted felon. She argues that the district court erred in denying her motion for a judgment of acquit- tal as to both counts. In particular, she contends that the govern- ment did not present sufficient evidence for a reasonable jury to infer that she knew of and voluntarily joined a drug conspiracy with her husband, Corey Andrew Carnegie, and that she construc- tively possessed a firearm discovered in a dresser in their master bedroom. She also argues that the district court abused its discre- tion in admitting evidence of her prior cocaine-related convictions because such evidence was unduly prejudicial and lacked probative value. Finally, she contends that the district court erred in sentenc- ing her as an armed career criminal because her state cocaine-re- lated convictions did not qualify as serious drug offenses under the Armed Career Criminal Act (“ACCA”) and the evidence did not show that her prior convictions occurred on different occasions. We will affirm. The facts are known to the parties, and we repeat them here only as necessary to decide the case. USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 3 of 14

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I We review a challenge to the sufficiency of the evidence and the denial of a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29 de novo. United States v. Chafin, 808 F.3d 1263, 1268 (11th Cir. 2015). We will uphold the district court’s denial of a Rule 29 motion for a judgment of acquittal “if a reason- able trier of fact could conclude that the evidence establishes the defendant’s guilt beyond a reasonable doubt.” United States v. Holmes, 814 F.3d 1246, 1250 (11th Cir. 2016) (citation omitted). We view all facts and inferences in the light most favorable to the gov- ernment. United States v. Clay, 832 F.3d 1259, 1293 (11th Cir. 2016). We will not overturn a jury’s verdict if there is any reasonable con- struction of the evidence that would have allowed the jury to find the defendant guilty beyond a reasonable doubt. Id. at 1294. “The test for sufficiency of evidence is identical regardless of whether the evidence is direct or circumstantial, and no distinction is to be made between the weight given to either direct or circum- stantial evidence.” United States v. Mieres-Borges, 919 F.2d 652, 656– 57 (11th Cir. 1990) (quotation marks omitted). But where “the gov- ernment relies on circumstantial evidence, reasonable inferences, not mere speculation, must support the conviction.” United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008). To convict a defendant under 21 U.S.C. § 846 for conspiracy to possess with intent to distribute a controlled substance, the gov- ernment must prove beyond a reasonable doubt that “(1) there was an agreement between two or more people to violate § 841(a)(1); USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 4 of 14

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(2) the defendant knew about the agreement; and (3) the defendant voluntarily joined the agreement.” United States v. Colston, 4 F.4th 1179, 1187 (11th Cir. 2021). All elements can be proven by either direct or circumstantial evidence. United States v. Poole, 878 F.2d 1389, 1391–92 (11th Cir. 1989). A defendant’s mere presence at the scene of key events or association with a coconspirator is insuffi- cient to prove membership or involvement in the drug conspiracy, but presence may be a material or probative factor that the jury considers in reaching its decision. United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005). Here, the district court did not err in denying Johnson’s Rule 29 motion as to Count One because, viewing all the facts and infer- ences in favor of the government, the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that Johnson conspired with Carnegie to possess and distribute drugs. Holmes, 814 F.3d at 1250; Clay, 832 F.3d at 1293. While Johnson’s mere presence at Carnegie’s home or association with Carnegie was in- sufficient to show her involvement in a drug conspiracy with him, a reasonable jury could have found that she knew of and voluntar- ily joined Carnegie’s drug-trafficking operation from the totality of the evidence that the government presented. Miranda, 425 F.3d at 959–60. Accordingly, we affirm the denial of Johnson’s motion for a judgment of acquittal as to Count One. II Under 18 U.S.C. § 922(g)(1), it is unlawful for anyone who has been convicted of a felony to knowingly possess a firearm that USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 5 of 14

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has been shipped or transported in interstate commerce. The fol- lowing elements must be satisfied: (1) knowing status as a con- victed felon and (2) possession (3) of a firearm (4) in or affecting interstate commerce. See Rehaif v. United States, 588 U.S. 225, 230– 231 (2019). Regarding a defendant’s status, the government must prove that the defendant knew that he was a convicted felon. See id. Next, possession of a firearm may be either actual or con- structive. United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011). A defendant’s presence in the vicinity of a firearm or mere associa- tion with another who possesses it is insufficient to show posses- sion. Id. At the same time, the firearm need not be on or near the defendant’s person to amount to knowing possession. Id. To show constructive possession, the government must prove, through ei- ther direct or circumstantial evidence, that the defendant (1) “was aware of or knew of the presence of the firearm” and (2) “had the intent and ability to later exercise dominion and control over the firearm.” Id. As to the first element, we recognize deliberate ignorance as an alternative to an actual-knowledge requirement that applies when a defendant is suspicious but does not make further inquiries so as to remain ignorant. United States v. Hristov, 466 F.3d 949, 952 (11th Cir. 2006). Sufficient evidence supports a finding of deliberate ignorance if the defendant “was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all the facts in order to have a defense in the event of a USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 6 of 14

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subsequent prosecution.” United States v. Garcia-Bercovich, 582 F.3d 1234, 1237–38 (11th Cir. 2009) (citation omitted). As to the second element, the defendant may exercise do- minion and control over the firearm either personally or through another. Perez, 661 F.3d at 576–77. Constructive possession may be established by evidence that the defendant had control over con- traband or over the premises in which contraband was concealed. United States v. Davis, 679 F.2d 845, 852–53 (11th Cir. 1982). Addi- tionally, “a defendant’s knowing participation in a joint criminal venture in which a particular firearm is intended to play a central part permits the jury to reasonably conclude that the defendant constructively possessed that gun,” even if the defendant never in- tended to use the firearm herself, because she shares in her copar- ticipants’ intent and jointly possesses the firearm as part of a shared armed criminal enterprise. Perez, 661 F.3d at 576–77. Thus, we have determined that sufficient evidence supported a jury finding that a defendant jointly and constructively possessed firearms as a felon when he participated in an armed robbery conspiracy cen- tered around the use of firearms. Id. at 578–79. Johnson first contends that a reasonable jury could not have inferred, based on the government’s evidence, that she knew of any of the firearms in the house, a required element of constructive possession, but this argument fails. Specifically, she asserts that the government unreasonably assumed she must have known firearms were present merely because she lived in Carnegie’s home where they were recovered. But the government’s evidence showed not USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 7 of 14

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only that Johnson stayed in the home but that she specifically in- teracted with the dresser where the gun was found. A reasonable jury could have inferred that Johnson likely knew of the gun be- cause testimony revealed that Johnson’s driver’s license, bank cards in her name, and women’s perfume were found on top of the dresser. See Clay, 832 F.3d at 1293. Second, Johnson contends that a reasonable jury could not have inferred, based on the government’s evidence, that she exer- cised dominion and control over any of the firearms, but this argu- ment also fails. A reasonable jury could have found that Johnson had dominion and control over the gun by virtue of her control over the master bedroom, where she lived according to her address on various papers and where she stored her personal effects. See Davis, 679 F.2d at 852–53. Accordingly, we affirm the denial of Johnson’s motion for a judgment of acquittal as to Count Three. III We review a district court’s decision to admit evidence un- der Rule 404(b) for an abuse of discretion. United States v. Brown, 587 F.3d 1082, 1091 (11th Cir. 2009). A district court can abuse its discretion when it applies an incorrect legal standard, follows im- proper procedures in making the determination, or makes clearly erroneous factual findings. United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). If we find that the district court abused its discretion by admitting Rule 404(b) evidence, the erroneously ad- mitted evidence is harmless if the government introduces sufficient USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 8 of 14

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evidence, uninfected by error, to support the verdict. United States v. Langford, 647 F.3d 1309, 1323 (11th Cir. 2011). To be admissible under Rule 404(b), that evidence must be “(1) relevant to one of the enumerated issues other than the de- fendant’s character, (2) supported by sufficient evidence to allow a jury to determine that the defendant committed the act, and (3) not unduly prejudicial under the standard set forth in Rule 403.” United States v. Barron-Soto, 820 F.3d 409, 417 (11th Cir. 2016). Evidence of a crime, wrong, or other act is not admissible as proof of the de- fendant’s character in order to show that she acted in accordance with her character on a particular occasion. Fed. R. Evid. 404(b)(1). That said, such evidence may be admissible to prove, among other things, intent, knowledge, and absence of mistake. Fed. R. Evid. 404(b)(2). In every conspiracy case, a defendant’s not-guilty plea puts her intent at issue, unless she takes affirmative steps to remove her state of mind from issue. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). And “[e]vidence of prior drug dealings is highly probative of intent to distribute a controlled sub- stance, as well as involvement in a conspiracy.” Barron-Soto, 820 F.3d at 417 (quotation marks omitted and citation omitted). The district court may exclude relevant evidence if its pro- bative value is substantially outweighed by, among other things, a danger of undue prejudice. Fed. R. Evid. 403. In determining whether Rule 404(b) evidence was unduly prejudicial, we consider whether the defendant’s intent was at issue, the overall similarity of the charged and extrinsic offenses, and the temporal proximity USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 9 of 14

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between the charged and extrinsic offenses. United States v. Edou- ard, 485 F.3d 1324, 1345 (11th Cir. 2007). “A prior crime need not be factually identical in order for it to be probative.” United States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013). A district court can mitigate any unfair prejudice possibly caused by the admission of Rule 404(b) evidence by issuing a limiting instruction on the use of that evidence. Edouard, 485 F.3d at 1346. We have declined to adopt a bright-line rule regarding tem- poral proximity between the extrinsic act and the charged offense. Matthews, 431 F.3d at 1311. Although the amount of time between the prior crime and the charged offense may affect the probative value of the prior crime, district courts are afforded broad discre- tion to determine whether an offense is too remote to be probative. Id. at 1311–12. We have held that an intervening period of 15 years did not render extrinsic evidence of small-scale marijuana convic- tions inadmissible despite the convictions’ “differing nature and re- moteness in time” from the defendant’s charged participation in a large-scale cocaine deal. United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995); see also Sterling, 738 F.3d at 239 (affirming admis- sion of a 15-year-old prior crime). Here, the district court did not abuse its discretion in admit- ting evidence of Johnson’s prior convictions under Rule 404(b). The court admitted the evidence not to show that Johnson acted in accordance with a propensity toward criminality but for the spe- cific, admissible reasons of showing she acted with intent and not out of mistake. Fed. R. Evid. 404(b)(1), (2); Barron-Soto, 820 F.3d at USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 10 of 14

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417. And the probative value of the prior convictions was not sub- stantially outweighed by a danger of undue prejudice because Johnson’s intent was at issue, her prior convictions were similar in nature to the charged conspiracy, and the court issued limiting in- structions to mitigate any prejudicial effect. Barron-Soto, 820 F.3d at 417; Edouard, 485 F.3d at 1345–1346. Accordingly, we affirm the admission of evidence of John- son’s prior convictions. IV We review de novo whether a prior state conviction quali- fies as a serious drug offense under the ACCA. United States v. Jack- son (Jackson II), 55 F.4th 846, 849–50 (11th Cir. 2022). If a party does not raise an argument before the district court, we review only for plain error. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). To preserve an objection, the ob- jection must be clear enough to inform the district court of its legal basis. United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006). To establish plain error, a defendant must show: (1) an error, (2) that was plain or obvious, (3) that affected the defendant’s substantial rights, and (4) that seriously affected the fairness, integrity, or pub- lic reputation of the proceedings. United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014). For an error to be plain, it must be plain under controlling precedent or the language of a statute or rule. Id. The ACCA requires that any person who violates 18 U.S.C. § 922(g) serve a mandatory minimum sentence of 15 years if she USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 11 of 14

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has three prior convictions for violent felonies or serious drug of- fenses, or both, “committed on occasions different from one an- other.” 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 manufac- ture or distribute, a controlled substance,” with controlled sub- stances defined by the Controlled Substances Act, 21 U.S.C. § 802. Id. § 924(e)(2)(A)(ii). Section 102 of the Controlled Substances Act defines a “controlled substance” as any substance on the federal controlled substances schedules. 21 U.S.C. §§ 802(6), 812. Federal law governs the meaning of terms in the ACCA, and state law gov- erns the elements of state-law crimes. Jackson II, 55 F.4th at 850. We apply the categorical approach to determine whether a defendant’s state conviction is a serious drug offense under the ACCA. Id. Under the categorical approach, we consider the statu- tory definition of the state offense rather than the facts of the crime itself. Id. A state conviction qualifies only if the state statute under which the conviction occurred defines the offense in the same way as, or more narrowly than, the ACCA’s definition of a serious drug offense. Id. Under Florida law, a person who sells or possesses with in- tent to sell, manufactures, or delivers a controlled substance named in § 893.03(2)(a) commits a felony in the second degree. Fla. Stat. § 893.13(1)(a)(1). Section 893.03 outlines Florida’s controlled sub- stances schedules and includes cocaine. Id. § 893.03(2)(a)(4). Any person who sells, purchases, manufactures, delivers, or brings into USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 12 of 14

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the state 28 grams or more of cocaine commits the first-degree fel- ony of trafficking in cocaine. Fla. Stat. § 893.135(1)(b)(1). Florida’s controlled substances schedules included ioflupane until 2017. Jackson II, 55 F.4th at 851 & n.3. The federal controlled substance schedules also included ioflupane until 2015. Id. at 851. In Jackson I, we vacated and remanded a defendant’s ACCA-enhanced sentence, holding that the appellant’s Florida co- caine-related offenses did not qualify as serious drug offenses under the ACCA. United States v. Jackson (Jackson I), 36 F.4th 1294, 1306 (11th Cir. 2022). It determined that the federal controlled sub- stances schedules that defined a serious drug offense under the ACCA were those in effect when the defendant committed his fed- eral offense and that those schedules did not cover ioflupane at the time he committed his federal offense. Id. at 1299–1302. We found that since the relevant Florida statute covered ioflupane when he was convicted of his prior cocaine-related offenses, the Florida stat- ute’s controlled-substance element was broader than the relevant version of the federal controlled substances schedules, and his prior cocaine-related convictions thus did not qualify as serious drug of- fenses. Id. at 1303–04. We vacated the opinion in Jackson I on Sep- tember 8, 2022. In Jackson II, we held that the appellant’s Florida cocaine-re- lated convictions qualified as serious drug offenses. 55 F.4th at 861– 62. We held that the ACCA’s definition of a serious drug offense incorporates the version of the federal controlled substances sched- ules in effect when the defendant was convicted of the prior state USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 13 of 14

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drug offense. Id. at 861. It determined that the appellant’s 1998 and 2004 Florida cocaine-related convictions qualified as serious drug offenses because Florida’s controlled substances schedules in- cluded ioflupane until 2017 and the federal controlled substance schedules also included ioflupane until 2015. Id. at 851 & nn.3–4, 861. In Wooden, the Supreme Court clarified the language of the ACCA requiring predicate convictions to be committed on differ- ent occasions, noting that several factors may be relevant to that determination but stating that a single factor, especially of time or place, can differentiate separate occasions from a single, uninter- rupted course of conduct. Wooden v. United States, 594 U.S. 360, 366–371 (2022). In United States v. McCloud, we stated that courts may make specific findings of fact, including whether criminal of- fenses occurred on separate occasions, based on undisputed state- ments in the PSI. 818 F.3d 591, 595 (11th Cir. 2016). An appellant abandons a claim when he “does not plainly and prominently raise it, for instance by devoting a discrete section of his argument to those claims,” where he makes it only in a pass- ing reference, or addresses it in a perfunctory manner without rea- soning or citations to authorities in support. Sapuppo v. Allstate Flo- ridian Ins., Co., 739 F.3d 678, 681 (11th Cir. 2014) (quotation marks omitted). An appellant may also abandon an issue by merely stat- ing that an issue exists, without further argumentation or discus- sion, which precludes consideration of the issue on appeal. Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009). USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 14 of 14

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Here, Johnson’s argument that she is not an armed career criminal because her Florida cocaine-related convictions do not qualify as serious drug offenses is foreclosed by Jackson II. See 55 F.4th at 861–62. Additionally, Johnson contends for the first time on appeal that her prior offenses were not committed on different occasions, but she did not support this claim with any reasoning, law, or discussion and did not dispute the facts related to the timing of her prior offenses at any point. Accordingly, we affirm Johnson’s sentence. AFFIRMED.