UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL ANTHONY CONAGE, Defendant-Appellant.
No. 17-13975
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
September 30, 2020
D.C. Docket No. 6:17-cr-00028-GKS-GJK-1
[PUBLISH]
Appeal from the United States District Court for the Middle District of Florida
(September 30, 2020)
Before ED CARNES, JULIE CARNES, and CLEVENGER,* Circuit Judges.
The outcome of this criminal sentencing appeal turns on how we interpret Florida‘s cocaine trafficking statute,
The ACCA defines a “serious drug offense” as an offense ”involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” See
Conage argues that a conviction based on one of these methods of violating the statute—“purchasing” a trafficking quantity of cocaine,1—would not qualify under federal law as a serious drug offense, which, to repeat, requires that the conduct prohibited by the particular drug statute “involve”2 the manufacture, distribution, or possession with the intent to distribute a controlled substance. If he is right, the district court improperly sentenced him pursuant to the ACCA because, again under federal law, if even one of the methods for violating
of cocaine qualifies as a serious drug offense as defined by the ACCA. The answer to this question, however, depends on how
We are unable to answer the pivotal question in this appeal, however, because neither
issues presented by this appeal are sufficiently important to warrant certification to the Florida Supreme Court.
I. BACKGROUND
In September 2016, Port Orange police officers executed a search warrant at an apartment in Port Orange, Florida after receiving an anonymous tip reporting suspicious activity at the apartment and observing defendant Michael Conage conduct what the police believed were numerous drug transactions out of the apartment. The search yielded two guns, multiple rounds of ammunition, hydromorphone (including 94 grams of hydromorphone pills and 34 grams of dilaudid) and multiple other drugs (oxycodone, amphetamine, cocaine base, and marijuana) in a bedroom near Conage‘s wallet and personal effects. Having identified Conage as a convicted felon based on his driver‘s license and Volusia County jail photographs, the police arrested him for being a felon in possession of a firearm and ammunition and for possessing narcotics.
The police reviewed Conage‘s criminal history and discovered that he had at least nine felony convictions in Volusia County, Florida, including drug convictions, a conviction for grand theft of a motor vehicle, and two convictions for fleeing and eluding a law enforcement officer. Conage was charged in a superseding indictment with possessing firearms and ammunition as a convicted felon in violation of
hydromorphone with intent to distribute it in violation of
Conage‘s presentence report (“PSR“) concluded that he should be sentenced as an armed career criminal under the ACCA, which imposes a 15-year mandatory minimum sentence when a defendant who violates
Conage objected to the PSR‘s conclusion that he should be sentenced under the ACCA, arguing that his cocaine trafficking conviction did not qualify as a serious drug offense under the ACCA. Conage noted that
involve manufacturing, distributing, or possessing cocaine with intent to distribute, as is required for an offense to qualify as an ACCA predicate offense. Without this trafficking conviction, Conage would have only two qualifying convictions, not the three convictions necessary to trigger the ACCA. The district court disagreed with Conage‘s argument and sentenced him to serve 15 years as required by the ACCA.
Conage appeals his sentence. As he did in the district court, Conage argues that his cocaine trafficking conviction—which, for purposes of this appeal and regardless of the actual facts,4 we must assume to be a conviction for trafficking by purchasing—does not qualify as a serious drug offense under the ACCA, meaning that he lacks the three qualifying convictions necessary to trigger the ACCA. The question presented by this appeal is thus whether a conviction under Florida law for trafficking by purchasing a trafficking quantity of cocaine (28 or more grams) is an offense ”involving manufacturing, distributing, or possessing with intent to manufacture or distribute” a controlled substance, which is required to satisfy the ACCA‘s definition of a serious drug offense. See
II. STANDARD OF REVIEW
We review de novo the legal question whether a state conviction qualifies as a serious drug offense under the ACCA. 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 state law when we interpret elements of state-law crimes.” United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015).
III. DISCUSSION
A. The Relevant Statutes: the ACCA and the Florida Drug Trafficking Statute
As noted, the ACCA requires a 15-year mandatory minimum sentence when a defendant who has three previous convictions for a serious drug offense violates
quotation marks omitted). See also United States v. James, 430 F.3d 1150, 1154 (11th Cir. 2005) (noting that the ACCA‘s use of the broad “involving language makes clear that the term serious drug offense may include even those state offenses that do not have as an element the manufacture, distribution, or possession of drugs with intent to manufacture or distribute” (internal quotation marks omitted)), overruled on other grounds by Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2552 (2015). Consistent with this Court‘s precedent, the Supreme Court recently clarified that the ACCA‘s definition of a serious drug offense “requires only that the state offense involve the conduct specified in the [ACCA].” See Shular v. United States, 140 S. Ct. 779, 782 (2020) (emphasis added) (affirming this Court‘s precedent that a state drug offense need not “match” the elements of a generic drug offense).
To determine whether a defendant‘s state conviction is for a serious drug offense under the ACCA, we apply what is described as a “categorical approach.” See Robinson, 583 F.3d at 1295. The categorical approach requires that we consider only the fact of the defendant‘s conviction and the statutory definition of the state offense at issue, rather than the facts underlying the defendant‘s conviction. See id. Under the categorical approach, a 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. See Descamps v. United States, 570 U.S. 254, 261 (2013). If it does not do so, the state conviction does not qualify as a serious drug offense regardless of the actual conduct that resulted in the defendant‘s conviction.5 See id.
The state statute at issue here is the Florida drug trafficking statute,
statute imposes a 30-year maximum sentence as well as mandatory minimum sentences and fines that increase in severity depending on the amount of cocaine involved, ranging from a 3-year minimum sentence and $50,000 fine for trafficking in 28 to 200 grams of cocaine to a 15-year minimum sentence and $250,000 fine for trafficking in 400 grams to 150 kilograms of cocaine.
Conage acknowledges that our Court has held that as to the language in
B. Precedent Interpreting the Term “Involves” in the ACCA
As relevant to this appeal, the ACCA defines a “serious drug offense” as “an offense under State law involving [the] . . . possessing with intent to . . . distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.”
1. The Supreme Court‘s Decision in Shular v. United States
In Shular v. United States, 140 S. Ct. 779, 781 (2020), the district court imposed a 15-year sentence under the ACCA based on the defendant‘s prior Florida convictions under
“makes it a crime to ‘sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.‘” Id. at 784. Our Court had affirmed Shular‘s ACCA-enhanced sentence, applying our circuit precedent that a “serious drug offense,” as defined in the ACCA‘s
The Supreme Court granted certiorari to resolve a split in the circuit courts as to whether the descriptive terms used in
state-drug offense ‘involves,’
The Supreme Court also clarified that the ACCA‘s definition of “serious drug offense” “requires only that the state offense involve the conduct specified in the federal statute [the ACCA]; it does not require that the state offense match certain generic offenses.” Id. at 782. The Supreme Court confirmed that
Shular had argued that because Florida‘s
(emphasis added). Thus, while “both parties’ interpretations of
Further, Shular had argued that the terms in the ACCA‘s definition referred to “elements,” from which he inferred that there must also be “elements” in the state drug offense. Rejecting Shular‘s argument, the Supreme Court held that the terms in the ACCA definition referred to conduct, not elements. The Court explained:
(1) “if Congress was concerned that state drug offenses lacked clear, universally employed names, the evident solution was to identify them instead by conduct” and to use “involving” rather than “is“; and
(2) “Section 924(e)(2)(A)(ii)‘s text and context leave no doubt that it refers to an offense involving the conduct of ‘manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.’ Because those terms describe conduct and do not name offenses, a court applying
§ 924(e)(2)(A)(ii) need not delineate the elements of generic offenses.”
Id. at 786–87 (emphasis in original).
Using this categorical approach outlined in Shular, our focus in this case therefore is on the conduct that the “purchasing” element of
140 S. Ct. at 787. As to the latter question, we have precedent that assists us in this inquiry, and we turn to that precedent now.
2. Eleventh Circuit Precedent
Our Court has not previously addressed whether the “purchasing” element in Florida‘s drug trafficking statute,
To repeat, one of the six acts prohibited in the Florida drug trafficking statute is the knowing actual or constructive possession of 28 grams or more of cocaine. In United States v. James, 430 F.3d 1150 (11th Cir. 2005), the defendant had been sentenced under the ACCA based, in part, on a prior conviction under
This Court reversed, concluding that trafficking by possessing 28 grams or more of cocaine, in violation of
ACCA serious drug offense because the statute involves possession of a controlled substance with the intent to distribute it. Id. at 1156. We noted that “[t]he language of the Florida statute need not exactly match the ACCA‘s definition of a ‘serious drug offense,‘” as the ACCA‘s “definition broadly includes any offense ’involving’ the manufacture, distribution, or possession with intent to manufacture or distribute.” Id. at 1155 (emphasis added). Further, “[t]his ‘involving’ language makes clear that the term ‘serious drug offense’ may include even those state offenses that do not have as an element the manufacture, distribution, or possession of drugs with intent to manufacture or distribute.” Id. On that score, we noted that like Georgia, Florida‘s drug trafficking statute requires that “the defendant must be in possession of a significant quantity of drugs, namely 28 grams, before the state deems the offense to be trafficking,” id. at 1155, and that “Florida‘s drug trafficking statute [] ‘infers an intent to distribute once a defendant possesses a certain amount of drugs.‘” Id. at 1154.
Further explaining its rationale, the Court in James observed that Florida‘s three-tiered drug offense scheme includes: (1) the lowest tier, which prohibits possession of any amount of a controlled substance, (2) a middle tier that prohibits possession with intent to distribute a controlled substance, and (3) the highest tier, which prohibits trafficking in a controlled substance, including trafficking by possessing a certain quantity of the substance. See id. at 1154. The Court
reasoned that, by placing trafficking at the top of this three-tiered system and deeming it a more serious crime than possession with intent to distribute, Florida law “infers an intent to distribute once a defendant possesses” a sufficiently large quantity of a controlled substance—which, in the case of cocaine, is 28 grams or more. See James, 430 F.3d at 1155. That is, Florida‘s three-tiered scheme “recognizes that someone who is convicted of drug trafficking . . . plans on distributing and thereby trafficking those drugs.” See id. at 1154 (internal quotation marks omitted). If federal law does not also infer an intent to distribute, the Court noted, an anomaly would result because the most serious drug offense in Florida law—trafficking—would not qualify as a serious drug offense under the ACCA
Our Court recently reaffirmed the reasoning of James and applied its holding to a conviction for trafficking by possession of cocaine under an Alabama trafficking statute that is nearly identical to Florida‘s trafficking statute. See United States v. White, 837 F.3d 1225 (11th Cir. 2016), cert. denied, 138 S. Ct. 1282 (2018). The defendant in White had a prior conviction for trafficking by possessing 28 grams of cocaine in violation of
which provides that a person unlawfully traffics in cocaine if he “knowingly sells, manufactures, delivers, or brings into [the] state, or . . . is knowingly in actual or constructive possession of, 28 grams or more of cocaine[.]”
Applying James, this Court rejected the defendant‘s argument in White that his Alabama cocaine trafficking conviction was not a serious drug offense under the ACCA because it did not necessarily involve “manufacturing, distributing, or possessing with [the] intent to manufacture or distribute” cocaine. See White, 837 F.3d at 1229 (quoting the ACCA‘s definition of a serious drug offense). Pursuant to James, we explained, an intent to distribute could be inferred from the large quantity of cocaine that the statute required a defendant to possess. See id. at 1232. Failing to make that inference, we further observed, would result in the anomaly the Court sought to avoid in James whereby trafficking, the most serious drug crime under Alabama law, would not qualify as an ACCA serious drug offense
while the less serious crime of possession with intent to distribute would qualify. See id. at 1233. We therefore held that the defendant‘s Alabama conviction for trafficking by possessing 28 grams or more of cocaine satisfied the ACCA‘s definition of a serious drug offense. See id. at 1235.
C. Interpretation of Florida Law Concerning the Conduct of Purchasing a Trafficking Quantity of a Controlled Substance
Thus, trafficking by purchasing cocaine in violation of
violence or a controlled substance offense. See
As noted infra, unlike the Guidelines, the ACCA does not require that the predicate drug conviction be based on a statute that expressly prohibits one of the specified acts set out in the ACCA. As noted, in James we held that “[t]he language of the Florida statute need not exactly match the ACCA’s definition of a ‘serious drug offense,’” as the ACCA’s “definition broadly includes any offense ‘involving’ the manufacture, distribution, or possession with intent to manufacture or distribute.” 430 F.3d. at 1155 (emphasis added). Thus, the ACCA’s definition of a serious drug offense is broader than the guidelines definition of a controlled substance offense. See White, 837 F.3d at 1235 (recognizing that “there is general agreement among the circuits that the ACCA’s definition of a serious drug offense is broader than the Guidelines definition of a drug trafficking or a controlled substance offense”). And the question before us in this case is whether, under the Florida drug trafficking statute, the purchase of a trafficking quantity of cocaine “involves” the actual or constructive possession of that drug, as set out in the ACCA, not the Guidelines.
1. Elements of “Trafficking by Purchase”
The initial question for us to decide then is whether “purchase” under
From that, one might reasonably assume that “purchase” would be defined as the converse of “sell,” meaning that a purchaser
Yet, the above inferences are derived from a dictionary definition of “purchase” that is not necessarily synonymous with the meaning that Florida law ascribes to the term. All of which means that, absent some definitive guidance from Florida caselaw, the meaning of the term “purchase” in the Florida trafficking statute remains unclear. Unfortunately, the Florida caselaw addressing convictions based on trafficking by purchase is sparse and discussion in cases concerning other methods by which a controlled substance can be trafficked offer, at best, vague hints as to the meaning of the term. Ultimately, in order to decide this case, we need to be able to understand what elements must be proved to convict a defendant of purchasing a trafficking quantity of drugs under the Florida drug trafficking statute,
First, some background as to the statutory options at the State’s disposal in this context. As noted,
Although not addressing an attempt, the Florida drug trafficking statute does address a conspiracy to traffic in drugs, stating that “[a]ny person who agrees, conspires, combines, or confederates with
In the present case, none of the authorities cited by Conage define the term “purchase” as used in
Nor has a review of cases involving a drug trafficking conviction not based on purchase enabled us to identify what elements a trafficking offense based on purchase would include. One Florida case has suggested in dictum that, in the context of a drug transaction, “[t]o receive or obtain something in exchange for compensation is to purchase.” Sobrino v. State, 471 So. 2d 1333, 1334 (Fla. 3d DCA 1985).12 Like the above-quoted dictionary definition of “purchase,” the Sobrino definition suggests that a purchase offense would involve not only paying for the drugs, but also receiving them. Yet, Sobrino, which involved a drug trafficking conviction based on a reverse sting,13 was issued before the Florida trafficking statute was amended to include purchasing as a means of trafficking.
Moreover, the focus of Sobrino was not on whether the defendant might have met the elements of an as-yet-not-enacted amendment of the trafficking statute outlawing the purchase of drugs. Instead, in reversing the conviction, the court focused on the fact that the defendant had been charged with the wrong offense: trafficking based on delivery. The charge alleged that the defendants “did knowingly take or accept delivery for compensation and aided, abetted, counseled and procured the delivery” of a trafficking quantity of cannabis. Id. at 1334. The Florida appellate court noted
In Cunningham v. State, 647 So. 2d 164 (Fla. 1st DCA 1994), the defendant was convicted of purchasing marijuana in violation of
A plausible take-away from this case is that both the majority and the dissent concluded that a purchase conviction requires the drugs to have been delivered to the defendant for the purchase to be complete. In addition, the majority also required the defendant to have actually paid for the drugs for the transaction to be considered a purchase. In short, Cunningham arguably suggests that a purchase conviction requires that the transaction be completed, and a completed transaction would require the purchaser to obtain possession of the purchased drug. Likewise, in Amaya v. State, 782 So. 2d 984 (Fla. 3d DCA 2001), the appellate court focused obliquely on the notion of a “completed sale” in upholding the defendant’s conviction for trafficking under
It is Conage’s position that proof of trafficking by purchase does not require the State to prove that the defendant ever possessed the drugs at issue, which, if true, would mean that it would be easier for the State to prove a purchase than to prove possession and one could presumably expect to see a lot more purchase convictions in Florida caselaw. Yet, interestingly, the Cunningham decision suggests that perhaps the opposite is true. That is, in the context of a transaction in which the defendant is the recipient of the drugs, perhaps the State can more readily prove possession than purchase if the latter
Some Florida cases do involve a conviction for the attempted purchase of illegal drugs. See, e.g., Foster v. State, 160 So. 3d 948, 950 (Fla. 5th DCA 2015); Cardi v. State, 685 So. 2d 842, 843 (Fla. 2d DCA 1995). But those cases do not discuss the elements of attempted purchase, which discussion might provide some enlightenment as to the elements of a completed purchase offense. Specifically, if a purchase conviction requires a completed transaction—that is, both payment and receipt (or control over the disposition) of the drugs—then an attempted purchase offense would presumably lack one or both of those components. On the other hand, if a purchase conviction requires only an uncompleted transaction, then there must be some other means by which Florida law differentiates a purchase from an attempted purchase offense.
All these observations aside, though, we feel little confidence in the above suppositions and require the assistance of the Florida Supreme Court to instruct us as to the elements of “purchase” under the Florida drug trafficking statute. Specifically, does the statute require a completed purchase; that is, a transaction in which the purchaser would have actual or constructive possession of the substance in question? If not, what are the elements of a conviction based on purchase?
2. Aiding and Abetting a Purchase Under the Florida Trafficking Statute
The above discussion addresses the uncertainty concerning what acts the putative purchaser of drugs must commit in order to be convicted of the substantive crime of trafficking drugs via a purchase. In support of his argument that a purchase conviction does not require the defendant to have had actual or constructive possession of the illegal drug, Conage cites a case that discusses the aiding and abetting of illegal drug activity: Ras v. State, 610 So. 2d 24 (Fla. 2d DCA 1992). The cited case does not address a purchase conviction, but Conage notes that it contains language suggesting that one might be able to aid and abet a drug purchase without having also aided and abetted possession of that drug. He argues that this language must mean that a purchase conviction does not require the defendant to actually or constructively possess the illegal substance at issue.
As to Florida law concerning aiding and abetting, Florida’s Principal in First Degree statute provides in pertinent part:
Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.
In Ras, the case relied on by Conage, the defendant was convicted of trafficking over 28 grams of cocaine in violation of
The trial judge at Ras’s trial for trafficking determined that the evidence supported only a trafficking by possession charge15 and he so instructed the jury, telling them that, to convict, they had to find that Ras either actually or constructively possessed the cocaine. The jury convicted. On appeal, the Florida Second District Court of Appeals reversed. It noted that, as Ras never physically held the cocaine, he could be convicted of possession only if he had dominion or control over the cocaine; that is, if he constructively possessed the drugs. As to that question, Ras had been present at both meetings with the detectives, negotiated the price for the cocaine, and, after his arrest, had told the detectives that he and Griswold were taking the cocaine to a buyer in Sarasota. The district court of appeals did not find that the above evidence would have been insufficient, as a factual matter, to prove that Ras had the ability to exercise dominion or control over the cocaine just purchased from the undercover agents. Yet, because of its interpretation of a unique Florida evidentiary rule—the corpus delicti rule16—the appellate court ruled that the trial court should not have relied on Ras’s post-arrest admission and that, without this admission, there was insufficient evidence to establish Ras’s constructive possession. Id.
Accordingly, the appellate court reversed Ras’s conviction for trafficking by possession to the extent that this conviction was based on Ras’s actual or constructive possession, himself, of the cocaine. Nothing in its analysis of that issue affects the question at issue in this case, which is what are the elements of trafficking by purchase. The court then proceeded to consider whether the evidence could support a possession conviction for Ras based on his aiding and abetting Griswold’s possession of the cocaine. With no explanation other than a citation to cases holding that aiding and abetting the sale of drugs does not necessarily mean that one has aided and abetted their possession, the appellate court concluded that Ras’s conduct—his meeting with undercover agents to purchase drugs, his negotiation of the price of the drugs, his subsequent meeting with agents to actually make the purchase, and his assistance to Griswold at this meeting—did not aid and abet Griswold in his ultimately successful possession of the cocaine. Id. at 26.
As a ruling evaluating the validity of a possession conviction, the court’s above discussion is not relevant to the precise question before us. However, it is when the appellate court next opined about a charge on which Ras had not been indicted and that was not before the court—whether Ras’s conduct could have constituted
At first glance, that is not an unreasonable inference to draw from this dicta in Ras. But the question before us is whether under Florida law, one can be found guilty of purchasing illegal drugs without also being in at least constructive, if not actual, possession of the substance. And the dicta provided by the Second District Court of Appeals in Ras does not provide a sufficient or responsive answer to that question.17 In the first place, there is contrary dicta from the Third District Court of Appeals and the First District Court of Appeals, in, respectively, Sobrino and Cunningham, discussed supra.
Moreover, in reaching its conclusion that Ras’s actions had not aided and abetted his cohort Griswold in the latter’s possession of the purchased cocaine, Ras is seemingly inconsistent with governing Florida principles concerning aiding and abetting. The Florida Supreme Court has held that in order to be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some other act to assist the other person in actually committing the crime. Staten v. State, 519 So. 2d 622, 624 (Fla. 1988); accord Banks v. State, 790 So. 2d 1094, 1098 n.2 (Fla. 2001). The Florida pattern jury instructions provide that a defendant who has helped another person commit or attempt to commit a crime is treated as a principal “if (1) the defendant had a conscious intent that the criminal act be done and (2) the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually [commit] [attempt to commit] the crime . . . .”
The appellate court in Ras concluded that Ras could not be convicted of aiding and abetting Griswold’s possession of the cocaine in question, but that conclusion does not seem to square with the Florida Supreme Court’s pronouncements on aiding and abetting, as set out in the above caselaw and in the pattern instructions. That is, Ras clearly performed acts that assisted his cohort Griswold in coming into possession of cocaine: Ras attended the first meeting with the undercover detectives, without Griswold, where he negotiated the price for the drugs to be purchased; Ras arranged to meet again with the undercover officers to purchase the cocaine; Ras attended that second meeting, this time with Griswold; and he assisted Griswold in testing the cocaine, who then paid for and received the cocaine. As to whether Ras had “a conscious intent that the criminal act be done,” he clearly did. Meeting with the detectives, negotiating a price, and meeting once again with them to purchase the cocaine made clear Ras’s intent. Cf. State v. Dent, 322 So. 2d 543, 544 (Fla. 1975) (the defendant, who was a go-between in the sale of drugs to an undercover agent, was properly convicted of aiding and abetting the sale, even though he received no compensation from the seller, because the defendant “took an active part in arranging the sale” and “the sales would not have occurred but for [defendant’s] arrangements”).
Yet, regardless of whether Ras’s dicta correctly applies Florida law concerning the standards for determining when a defendant has aided and abetted possession, a careful parsing of Ras reveals that it really has nothing to do with the fundamental question before us—whether a purchase conviction requires the defendant to actually or constructively possess illegal drugs. Ras never analyzes that issue. To do so, it would have had to determine whether Griswold, the individual who paid for the drugs, would have also been required to come into possession of the cocaine in order to be convicted of purchasing. Not surprisingly, Ras never poses that question, and for good reason, as Griswold clearly did both: he paid for the drugs and he possessed them. Thus, no matter how broadly or narrowly one defines “purchase,” there was no question that Griswold’s conduct would have met any definition of purchase. The Ras dicta dealt with a different issue: whether a defendant who assists another person in obtaining drugs via a purchase can ever be convicted of aiding and abetting that other person’s possession of the drugs. Ras said “no” on the facts before it, even though the assistance by Ras that helped Griswold make the purchase was the same assistance that helped Griswold gain possession of the drugs. But whether right or wrong, that dicta does not tell us whether a purchase conviction can be sustained if the purchaser has not actually come into possession of the drugs prior to his arrest. In short, Ras provides analysis about aiding and abetting possession, not analysis about the elements of a purchase offense.
Finally, that we have questioned whether the dicta in Ras represents the law of Florida on the precise question before us should not suggest that we take a position as to whether a purchase conviction under Florida law requires the defendant to have actually or constructively possessed the drugs in question. Obviously, that is a matter to be determined solely by the Florida
III. QUESTIONS CERTIFIED TO THE FLORIDA SUPREME COURT
The certification procedure is “a valuable tool” that “helps save time, energy, and resources and produces authoritative answers to novel or unsettled questions of state law.” World Harvest Church, Inc. v. Guideone Mut. Ins. Co., 586 F.3d 950, 960–61 (11th Cir. 2009) (internal quotation marks omitted). Florida’s constitution expressly provides for certification to the Florida Supreme Court of state law questions that are “determinative of the cause and for which there is no controlling precedent of the supreme court of Florida.”
How does Florida law define the term “purchase” for purposes of
Florida Statutes § 893.135(1) ? More specifically, does a completed purchase for purposes of conviction under§ 893.135(1) require some form of possession—either actual or constructive—of the drug being purchased?
Our statement of the certified questions is merely suggestive and is not meant to limit the inquiry of the Florida Supreme Court. As this Court has explained many times, “the particular phrasing used in the certified question[s] is not to restrict the Supreme Court’s consideration of the problems involved and the issues as the Supreme Court perceives them to be in its analysis of the record certified in this case.” Miller v. Scottsdale Ins. Co., 410 F.3d 678, 682 (11th Cir. 2005) (quoting Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir. 1968))19 (internal quotation marks omitted). “This latitude extends to the Supreme Court’s restatement of the issue or issues and the manner in which the answers are given.” Id. To assist the Florida Supreme Court in considering the case, the entire record, along with copies of the briefs of the parties, is transmitted herewith.
QUESTIONS CERTIFIED.