Atlanta, Georgia - Criminal defense lawyer represented defendant with a being a felon in possession of a firearm and ammunition charge.
Sergeant Adam Ardizzoni of the Jacksonville Sheriff’s Office was running
laser radar one night when he clocked a car traveling at 15 miles per hour over the
He radioed nearby Officer Rafael Lugo with an alert about the
vehicle’s speed. Officer Lugo pulled the car over, and while he was running the
tag, he saw the driver reach down several times. Under cover of his spotlight,
Officer Lugo approached the passenger side of the car—where he saw that the
driver was still reaching down. He radioed for backup, which arrived in the form
of Sergeant Ardizzoni and another officer, Patrick Ivey.
No longer alone, Officer Lugo approached the driver’s side window and
made his first contact with the driver, Jerome Stancil. When Stancil lowered the
window, Officer Lugo asked for his driver’s license, but he also noticed something
inside Stancil’s car—the smell of marijuana. It was a familiar smell to Officer
Lugo, who estimated that he had encountered it more than 20 times before in
1 When reviewing a district court’s denial of a motion to suppress, we construe the facts in the
light most favorable to the prevailing party—here, the government. United States v. Ransfer,
749 F.3d 914, 921 (11th Cir. 2014).
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earlier traffic stops. The smell was also familiar to Sergeant Ardizzoni, who had
received narcotics training and similarly testified to smelling marijuana when
Stancil’s window came down. Officer Lugo asked Stancil to step out of his car
and ran Stancil’s driver’s license. That check revealed that Stancil was a convicted
felon on probation.
While Officer Lugo checked Stancil’s license, Officer Ivey searched the car.
His apparent suspicion that he would find contraband was correct; he discovered a
Taurus .40 caliber pistol loaded with ten rounds of ammunition under the driver’s
side floor mat. Officer Lugo handcuffed Stancil and walked him over to the
backseat of the police car. After hearing the Miranda warning, Stancil decided to
talk and admitted that the firearm was his.
A grand jury charged Stancil with being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1). Stancil moved to suppress
the firearm and ammunition, arguing that they were the fruit of an unlawful search
and seizure. The motion was referred to a magistrate judge, who conducted an
evidentiary hearing where Officer Lugo, Sergeant Ardizzoni, and Stancil’s son—
who had arrived at the scene after the arrest—testified. The magistrate judge
recommended denying the motion to suppress, and the district court adopted that
Stancil waived his right to a jury trial and agreed to a stipulated bench trial,
though he preserved his right to appeal the suppression decision. Among other
things, Stancil stipulated that he was a convicted felon, that he knowingly
possessed a pistol, that his pistol was manufactured in Brazil, and that his pistol
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qualified as a “firearm” within the meaning of 18 U.S.C. § 921(a)(3). Those
stipulations were decisive for the district court, which found Stancil guilty.
Next came Stancil’s sentencing hearing. The government presented three of
Stancil’s prior convictions, all of which came under Virginia Code § 18.2-248.
The conduct underlying those convictions occurred in 1996, 1997, and 2004; the
first two convictions were for possession of cocaine with intent to distribute, and
the most recent was for manufacture, sale, distribution, or possession with intent to
distribute cocaine and heroin. The district court found that all three qualified as
serious drug offenses under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1),
which meant that Stancil was subject to a minimum sentence of 15 years. The
court sentenced him to that minimum term of imprisonment. Stancil now appeals.
Stancil raises two real issues on appeal. He first argues that the district court
erred when it found that he was an armed career criminal. He next claims that the
district court erred when it denied his motion to suppress. Stancil also raises
various claims of legal error, but he acknowledges that they are foreclosed by our
Stancil first contends that none of his prior convictions qualify as a “serious
drug offense” under ACCA. We review this issue de novo. United States v.
Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009). “When conducting our review,
we are bound by federal law when we interpret terms in the ACCA and bound by
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state law when we interpret elements of state-law crimes.” United States v.
Conage, 976 F.3d 1244, 1249 (11th Cir. 2020) (quotation omitted).
Under ACCA, a person who violates § 922(g) and has three previous
convictions for a “serious drug offense” that were “committed on occasions
different from one another” is subject to a mandatory minimum sentence of 15
years’ imprisonment. 18 U.S.C. § 924(e)(1). A “serious drug offense” includes
“an offense under State law, involving manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance” for which “a
maximum term of imprisonment of ten years or more is prescribed by law.” Id.
We have construed those terms broadly. For one, our interpretation of
“distributing” does not require “an exchange for value.” Hollis v. United States,
958 F.3d 1120, 1122 (11th Cir. 2020). For another, we read “involving” to mean
that a state statute “need not exactly match the specific acts listed in the ACCA’s
definition” for it to give rise to a serious drug offense. United States v. White, 837
F.3d 1225, 1235 (11th Cir. 2016) (quotation omitted); see also Shular v. United
States, 140 S. Ct. 779, 782 (2020).
To determine whether a conviction under a state statute falls within those
contours, we generally apply the categorical approach. White, 837 F.3d at 1229.
That means we are not concerned about the specific facts of the defendant’s prior
convictions. Id. Instead, we consider only “the fact of the conviction and the
statutory definition of the offense.” Id. “When a state crime sweeps broader than
ACCA’s definitions, that crime cannot categorically qualify as an ACCA
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predicate.” Beeman v. United States, 899 F.3d 1218, 1229–30 (11th Cir. 2018). In
other words, we “must presume that the conviction rested upon the least of the acts
criminalized by the statute.” United States v. Oliver, 962 F.3d 1311, 1316 (11th
Cir. 2020) (quotation omitted). But that presumption has limits: “[t]he inquiry into
the minimum conduct criminalized by the state statute must remain within the
bounds of plausibility.” United States v. Dixon, 874 F.3d 678, 681 (11th Cir.
Stancil argues that, whether or not his past crimes were themselves “serious
drug offenses” under ACCA, the least culpable conduct under the statute of
conviction is not. All three of his prior convictions were under Virginia Code
§ 18.2-248, which provides that it is unlawful to “manufacture, sell, give,
distribute, or possess with intent to manufacture, sell, give or distribute a controlled
substance.” Va. Code § 18.2-248(A). According to Stancil, the least culpable
conduct under that statute is giving or possessing with intent to give a controlled
substance to another “only as an accommodation,” without “intent to profit thereby
from any consideration received.”2
Id. § 18.2-248(D). In his telling, that is not a
“serious drug offense,” because “giving” or possessing with intent to “give” a
controlled substance does not involve “manufacturing, distributing, or possessing
with intent to manufacture or distribute.” See 18 U.S.C. § 924(e)(2)(A)(ii).
2 Under Virginia law, the accommodation provision serves “to mitigate the punishment for the
crime of distribution of a controlled substance.” Jones v. Commonwealth, 822 S.E.2d 19, 23
(Va. Ct. App. 2018). “It is not a separate offense requiring that the Commonwealth prove
different elements.” See id.
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We disagree. We were presented with a statute similar to § 18.2-248 in
Hollis v. United States; that defendant had prior convictions under Alabama Code
§ 13A-12-211(a), which provides that a person commits unlawful distribution of a
controlled substance if he “sells, furnishes, gives away, delivers, or distributes” the
substance. Ala. Code § 13A-12-211(a); see Hollis, 958 F.3d at 1123. There too
“giving away” is the least culpable conduct under the statute. See Ala. Code
§ 13A-12-211(a). We nonetheless held that the defendant’s prior convictions
“categorically qualif[ied] as predicate offenses” under ACCA. Hollis, 958 F.3d at
1123. In other words, we found that any violation of the Alabama statute—
including “giving away” a controlled substance—is a predicate serious drug
offense under ACCA.
Another one of our precedents is similarly fatal to Stancil’s case. In United
States v. Robinson, Robinson received an ACCA enhancement because of his prior
conviction under Alabama Code § 13A-12-213(a). 583 F.3d at 1294–95. On its
face, that statute does more than just criminalize possession with intent to give—it
criminalizes possession of marijuana “for other than personal use.” Ala. Code
§ 13A-12-213(a)(1). We affirmed Robinson’s enhancement, reasoning that the
statute, in criminalizing possession for other than personal use, necessarily
“punishes the possession of marijuana with the intent to distribute to another.”
Robinson, 583 F.3d at 1296 (emphasis added). Put differently, our holding was
that a conviction for possession of marijuana for other than personal use qualifies
as a serious drug offense under ACCA. Id. at 1296–97. So this Circuit has already
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rejected Stancil’s argument that possession of drugs with intent to give them away
without a profit motive is not a serious drug offense.
Stancil resists this logic on two grounds. First, he argues that because
§ 18.2-248 prohibits possession with intent to “manufacture, sell, give or distribute
a controlled substance,” the terms “sell” and “give” must include something
beyond distribution. Otherwise, Stancil contends, “sell” and “give” would be
rendered surplusage. Even if we credited that argument, however, that would only
show that Virginia’s definition of “selling” or “giving” is different than Virginia’s
definition of “distribution.” It would not show that Virginia’s definition of
“selling” or “giving” is different than the federal definition of “distribution” in
ACCA. ACCA’s definition is what matters—and as we already know, it defines
“serious drug offense” expansively. See White, 837 F.3d at 1233.
Second, Stancil argues that “social sharing among users”—which in his view
is criminalized by the Virginia statute—is simply not “serious,” so it cannot be a
serious drug offense. But whether Stancil thinks his prior convictions are serious
or trivial is irrelevant. Possession for “social sharing” is possession “for other than
personal use,” and it is Robinson that sets the standard—not Stancil’s subjective
impression of the gravity of his past crimes. See 583 F.3d at 1296–97.
In sum, prior convictions under § 18.2-248 categorically qualify as serious
drug offenses within the meaning of ACCA. And Stancil has three of them. So
when the district court applied the ACCA enhancement to Stancil’s sentence, it did
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Stancil next argues that the district court erred when it denied his motion to
suppress because it improperly credited the officers’ testimony. In particular, he
contends that the officers were inconsistent about their locations relative to
Stancil’s car when the window was lowered. Stancil also points out that the
officers mentioned various details at the suppression hearing—such as finding
green leaves on the vehicle floorboard—that did not make it into their incident
reports. Finally, he suggests that the magistrate judge might have credited the
officers’ testimonies based on their status as police officers.
In reviewing a denial of a motion to suppress, we are bound by the district
court’s findings of fact, as well as its credibility choices, unless we see a clear
error. United States v. Roy, 869 F.2d 1427, 1429 (11th Cir. 1989). For credibility
determinations, that means we must “accept the evidence unless it is contrary to
the laws of nature, or is so inconsistent or improbable on its face that no reasonable
factfinder could accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002) (quotation omitted).
We see no clear error in the magistrate judge’s decision to credit the
testimonies of Sergeant Ardizzoni and Officer Lugo. As the magistrate judge
noted, the officers “testified consistently with each other as to the sequence of
events related to the traffic stop.” Where Lugo apparently could not remember
certain details, the magistrate judge said that it did “not appear that Officer Lugo
was being untruthful; rather, his demeanor showed he simply could not remember
this detail of the traffic stop.” And Stancil’s alleged inconsistencies—such as the
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officers’ relative positions to his car—do not render the magistrate judge’s
credibility determination “so inconsistent or improbable on its face that no
reasonable factfinder could accept it.”3
Crediting the officers’ testimony, as the court was permitted to do, led to the
obvious conclusion that the officers had probable cause to search Stancil’s car. To
start, Stancil does not argue that the officers lacked probable cause to stop him in
the first place. That means Officer Lugo was permitted to conduct “ordinary
inquiries incident to the traffic stop.” Rodriguez v. United States, 575 U.S. 348,
355 (2015) (alterations adopted) (quotation omitted). One such “ordinary inquiry”
is “checking the driver’s license”—and it was during that check that Officer Lugo
and Sergeant Ardizzoni noticed the smell of marijuana. Id. And because “the
smell of burnt marijuana emanating from a vehicle is sufficient probable cause to
search a vehicle,” that means the officers could search Stancil’s car—even without
considering the natural suspicion that followed from Stancil’s motions in the car
after he was pulled over. Merricks v. Adkisson, 785 F.3d 553, 560 n.3 (11th Cir.
Lastly, Stancil alleges various errors so he can preserve them “for purposes
of further review.” As Stancil acknowledges, each of these arguments is
foreclosed by prior Supreme Court and Circuit precedent.
3 We also reject any insinuation that the magistrate judge credited the officers’ testimony merely
because they were police officers. The magistrate judge explicitly said that courts do “not
consider the official rank or status of the witness” in making credibility determinations, and
instead relied on the consistency of the testimonies and Officer Lugo’s demeanor.
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First, he argues that the district court violated his Fifth and Sixth
Amendment rights in determining that his prior predicate offenses occurred on
different occasions. More specifically, he contends that the district court could not
determine that he had prior convictions that occurred on different occasions
because he never stipulated to those facts and because the government should have
had to charge those facts in the indictment and then prove them beyond a
reasonable doubt at trial. But we have already held that district courts may look to
a limited set of evidence, called Shepard documents, to determine whether crimes
were committed on different occasions. See United States v. Longoria, 874 F.3d
1278, 1281 (11th Cir. 2017). Shepard-approved documents include the “terms of
the charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was confirmed
by the defendant,” or “some comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005). The district court relied on those
sorts of documents here, and did not err in doing so. See Almendarez-Torres v.
United States, 523 U.S. 224, 226–27 (1998).
Second, he asserts that 18 U.S.C. § 922(g)(1) exceeds Congress’s authority
under the Commerce Clause.4
But we have already held that § 922(g) is within
Congress’s Commerce Clause powers. See United States v. Dupree, 258 F.3d
1258, 1259–60 (11th Cir. 2001). So while it is Stancil’s prerogative to preserve
this argument, it cannot succeed here
Outcome: The district court’s judgment is AFFIRMED.