[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-13975

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D.C. Docket No. 6:17-cr-00028-GKS-GJK-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

MICHAEL ANTHONY CONAGE, 

 Defendant-Appellant.

________________________

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.

JULIE CARNES, Circuit Judge: 

∗ Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal Circuit,

sitting by designation. 

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The outcome of this criminal sentencing appeal turns on how we interpret 

Florida’s cocaine trafficking statute, Florida Statutes § 893.135(1)(b)1. Defendant 

Michael Conage, who was convicted of being a felon in possession of firearms and 

ammunition in violation of 18 U.S.C. § 922(g), was sentenced under the Armed 

Career Criminal Act (the “ACCA”). The ACCA imposes a 15-year mandatory 

minimum sentence for a defendant convicted under § 922(g) who has three 

previous convictions for a violent felony or a serious drug offense as defined by 

the ACCA. See 18 U.S.C. § 924(e)(1). The district court held that Conage had 

been convicted of three qualifying drug offenses, one of which offenses was 

trafficking in cocaine in violation of Florida Statutes § 893.135(1)(b)1., and the 

court sentenced Conage accordingly. Conage appeals that ruling, arguing that a

Florida drug trafficking conviction cannot satisfy the ACCA’s definition of a 

serious drug offense.

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 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). To 

determine whether the district court erred by sentencing Conage under the ACCA, 

we must decide whether trafficking cocaine in violation of Florida Statutes

§ 893.135(1)(b)1. satisfies the ACCA’s definition of a serious drug offense.

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Florida Statutes § 893.135(1)(b)1. enumerates six methods of trafficking cocaine: 

selling, purchasing, manufacturing, delivering, bringing into the state, or 

knowingly possessing cocaine in an amount that Florida law specifies as 

constituting a trafficking quantity: 28 grams or more of cocaine. Under federal 

law interpreting the ACCA, a § 893.135(1) conviction can qualify as a serious drug 

offense under the ACCA only if each one of these six alternatives satisfies the 

ACCA definition of a serious drug offense. 

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 Florida 

Statutes § 893.135(1) fails to constitute a serious drug offense, then the entire 

statute falls for purposes of being counted as a predicate conviction for ACCA 

purposes. So, this Court must now decide if the purchase of a trafficking quantity 

1

 We use interchangeably the terms “a trafficking quantity of cocaine” and “28 grams or more 

of cocaine.”

2

 We discuss at greater length the definition of the term “involve.” See infra at 12-20.

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of cocaine qualifies as a serious drug offense as defined by the ACCA. The 

answer to this question, however, depends on how Florida Statutes § 893.135(1) 

defines “purchasing,” or, stated another way, what the State must prove in order to 

convict a defendant of purchasing a trafficking quantity of cocaine. 

We are unable to answer the pivotal question in this appeal, however, 

because neither Florida Statutes § 893.135(1) nor Florida caselaw sets out the 

elements of the offense of trafficking by purchasing a controlled substance or 

otherwise defines clearly the term “purchasing” as used in the statute. We can 

safely assume that the question whether a conviction for drug trafficking under 

Florida law qualifies as an ACCA serious drug offense will arise in many cases, 

meaning that this issue is certain to recur. Moreover, the significance of the

answer to this question is enormous. Florida Statutes § 893.135(1), which 

addresses drug trafficking for multiple types of controlled substances, is the most 

serious of all drug offenses under Florida law. Yet, if Conage is correct in his 

assertion that the “purchasing” of a trafficking quantity of a controlled substance 

does not involve possession with intent to distribute that substance, then no Florida 

drug trafficking conviction under § 893.135(1) can ever qualify as an ACCA 

predicate offense, notwithstanding that statute’s status as Florida’s most serious 

criminal drug statute. Thus, in addition to being unsettled under Florida law, the 

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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 18 U.S.C. §§ 922(g) and 924(e) and possessing 

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hydromorphone with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) 

and (b)(1)(C). A jury convicted Conage on both counts charged in the indictment 

after a two-day trial. 

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 § 922(g) has three previous 

convictions for a violent felony or a serious drug offense as defined by the ACCA. 

See 18 U.S.C. § 924(e)(1). The PSR determined that Conage had been convicted 

of three state offenses that satisfied the ACCA’s definition of a serious drug 

offense, one of which offenses was trafficking cocaine in violation of Florida 

Statutes § 893.135(1)(b)1.3

 

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 Florida Statutes § 

893.135(1)(b)1. prohibits trafficking cocaine by various means, and that federal 

law required the district court to assume that Conage had committed the offense by 

purchasing a trafficking quantity of cocaine: an act that Conage says does not 

3

 Conage was arrested on this charge in April 2006 and, following his conviction, sentenced in 

September 2006 to serve ten years in the Florida Department of Corrections, which sentence was 

to run concurrently with a 10-year sentence for an unrelated felony conviction for fleeing and 

attempting to elude. He was released from custody on August 9, 2015, about a year prior to his 

arrest on the charges that led to his conviction in the present case. 

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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 18 U.S.C. § 924(e)(2)(A)(ii) 

(emphasis added). 

4

 As set out in the Presentence Report, the actual facts underlying Conage’s Florida drug 

trafficking conviction offer no suggestion that the charge related to a purchase by Conage of 

drugs. Instead, the report indicates that Conage was arrested after being found driving a vehicle 

with a suspended driver’s license and in possession of 36 grams of cocaine. 

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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 

§ 922(g). See 18 U.S.C. § 924(e)(1). The ACCA defines a serious drug offense as 

an offense “involving manufacturing, distributing, or possessing with intent to 

manufacture or distribute, a controlled substance.” Id. § 924(e)(2)(A)(ii). This 

Court has adopted an “expansive interpretation of the word ‘involving’ as used in 

the ACCA’s definition of a serious drug offense.” United States v. White, 837 F.3d 

1225, 1233 (11th Cir. 2016), cert. denied, 138 S. Ct. 1282 (2018). Pursuant to that 

interpretation, a state offense can qualify as an ACCA serious drug offense even 

though it “do[es] not have as an element the manufacture, distribution, or 

possession of drugs with intent to manufacture or distribute.” Id. (internal 

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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. __, 

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, __U.S.__, 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 

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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, Florida 

Statutes § 893.135(1)(b)1.6

 It provides that the sale, purchase, manufacture, 

delivery, importation into the state, or possession (actual or constructive) of 

between 28 grams and 150 kilograms of cocaine7 constitutes the crime of 

“trafficking in cocaine,” which is a first-degree felony. This drug trafficking 

5

 Under certain circumstances, a sentencing court may use a modified categorical approach to 

determine whether a state conviction qualifies as a serious drug offense. To determine whether 

the conviction qualifies as a predicate conviction for sentencing enhancement purposes, this 

“modified” approach permits consideration of certain court documents to identify the pertinent 

facts that formed the basis of the conviction. See Descamps, 570 U.S. at 261. But we have held 

that the modified categorical approach does not apply to a conviction for trafficking opioids 

under Florida Statutes § 893.135(1)(c). See Cintron v. United States Att’y Gen., 882 F.3d 1380, 

1385 (11th Cir. 2018) (citing Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)). The 

relevant language of Florida Statutes § 893.135(1)(b)1. is identical to the language of Florida 

Statutes § 893.135(1)(c). The Court’s ruling in Cintron thus applies to a conviction under 

§ 893.135(1)(b)1., meaning that the categorical approach governs this case. See Francisco v. 

United States Att’y Gen., 884 F.3d 1120, 1134 (11th Cir. 2018) (“The holding of Cintron

controls our decision because Fla. Stats. § 893.135(1)(b) and (1)(c) have substantively identical 

language.”). 

6

 “Any person who knowingly sells, purchases, manufactures, delivers, or brings into this 

state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine . 

. . but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first 

degree, which felony shall be known as “trafficking in cocaine[.]” Fla. Stats. § 893.135(1)(b)1.

7

 A conviction based on the sale, purchase, manufacture, delivery, bringing into the state, or 

actual or constructive possession of 150 kilograms or more of cocaine triggers a mandatory life 

sentence. Fla. Stats. § 893.135(1)(b)(2).

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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. Fla. Stats. 

§ 893.135(1)(b)1., § 775.082(3)(b). 

Thus, § 893.135(1)(b)1. sets out six ways in which a conviction for 

trafficking cocaine can be based: selling, purchasing, knowingly possessing, 

manufacturing, delivering, or bringing into the state cocaine in an amount that 

Florida law specifies as constituting a trafficking quantity—28 grams or more of 

cocaine. Nevertheless, under the categorical approach, a conviction for trafficking 

cocaine, or any other type of drug prohibited by Florida Statutes § 893.135(1), can 

qualify as an ACCA predicate only if each of the six methods set out in the statute 

satisfies the ACCA’s definition of a serious drug offense. See id. In other words, 

whether a state conviction for trafficking illegal drugs in violation of § 893.135(1) 

qualifies as a serious drug offense under the ACCA is an all-or-nothing 

proposition. If even one method of sustaining a drug trafficking conviction does 

not qualify as a serious drug offense, then the entire statute is disqualified as a 

predicate conviction for ACCA purposes. 

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Conage acknowledges that our Court has held that as to the language in 

§ 893.135(1)(b)1. providing that the possession of a threshold amount of cocaine 

constitutes drug trafficking, the Florida statute satisfies the ACCA provision 

requiring a state “serious drug offense” to criminalize conduct involving 

possession with the intent to distribute a controlled substance. 18 U.S.C. 

§ 924(e)(2)(A)(ii). The specific question before this Court then is whether the 

purchase of a trafficking quantity of cocaine under Florida’s drug trafficking 

statute likewise involves the possession of that substance. 

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.” 18 U.S.C. § 924(e)(2)(A)(ii). As to the term

“involve,” the Supreme Court has recently spoken, as has this Court in its previous 

interpretation of the Florida drug trafficking statute and another similar drug 

statute. We turn to those cases. 

1. The Supreme Court’s Decision in Shular v. United States

In Shular v. United States, ___U.S.___, ___, 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 Florida Statute § 893.13(1)(a), which 

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“makes it a crime to ‘sell, manufacture, or deliver, or possess with intent to sell, 

manufacture, or deliver, a controlled substance.’” Id. at ___, 140 S. Ct. 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 

§ 924(e)(2)(A)(ii), requires only that the activities addressed in the prior predicate 

state drug offense involve certain activities, and not that it match the elements of a 

generic drug offense. United States v. Shular, 736 F. App’x 876, 877 (11th Cir. 

2018) (applying United States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014)).

The Supreme Court granted certiorari to resolve a split in the circuit courts 

as to whether the descriptive terms used in § 924(e)(2)(A)(ii)’s “serious drug 

offense” definition (1) require a comparison to the elements of a generic drug 

offense8 or (2) merely identify or describe activities or conduct that the state drug 

offense involves. Shular, ___U.S. at ___, 140 S. Ct. at 783–84. In affirming this 

Court’s decision, the Supreme Court told us two important things about the terms 

in this ACCA definition: (1) “the terms in § 924(e)(2)(A)(ii)—‘manufacturing, 

distributing, or possessing with intent to manufacture or distribute, a controlled 

substance’—are unlikely names for generic offenses” and instead “[t]hose words 

undoubtedly can be used to describe conduct,” and (2) “by speaking of activities a 

8 The Supreme Court explained that a generic version of a crime meant “the elements of the 

offense as commonly understood.” Shular, ___U.S. at ___, 140 S. Ct. at 783 (quotation marks 

omitted).

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state-drug offense ‘involves,’ § 924(e)(2)(A)(ii) suggests the descriptive terms

immediately following that word ‘involv[es]’ identify conduct.” Id. at ___, 140 S. 

Ct. at 785.

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 ___, 140 S. Ct. at 782. The Supreme Court 

confirmed that § 924(e)(2)(A)(ii) calls for application of a categorical approach, 

but one that determines whether state drug offenses “involve,”—that is 

“necessarily requir[e]”—the types of conduct identified in § 924(e)(2)(A)(ii). Id.

at ___, 140 S. Ct. at 785–86.9

 

Shuler had argued that because Florida’s § 893.13(1)(a) statute does not 

include a mens rea requirement, while most other states’ drug laws require that the 

defendant know the substance is illicit, the Florida statute did not qualify as a 

serious drug offense under the ACCA. Id. at ___, 140 S. Ct. at 787. The Supreme 

Court characterized the parties’ opposing positions as being a choice between 

applying the ACCA “to all offenders who engaged in certain conduct” versus 

applying the ACCA “to all who committed certain generic offenses.” Id. 

9 In Shular, “the parties agree[d] that ‘involve’ means ‘necessarily requir[e].’” ___U.S. at 

___, 140 S. Ct. at 785 (second alteration in original).

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(emphasis added). Thus, while “both parties’ interpretations of 18 U.S.C. 

§ 924(e)(2)(A)(ii) achieve a measure of consistency,” the Court was “persuaded 

that Congress chose the former.” Id. at ___, 140 S. Ct. at 787 (emphasis added).

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 ___, 140 S. Ct. 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 Florida Statute 

§ 893.135(1)(b)1. prohibits and on whether that conduct necessarily involves the 

conduct prohibited in the serious drug offense provision of the ACCA. Id. at ___, 

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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, § 893.135(1)(b)1., meets the requirements for a 

serious drug offense set out in the ACCA, but we have addressed the question 

whether that statute’s “possession” element does so. And we determined that it 

did. 

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 

Florida Statutes § 893.135(1)(b)1. for possessing between 200 and 400 grams of 

cocaine in violation of § 893.135(1)(b)1. See id. at 1152. The sentencing court 

determined that the conviction did not qualify as a serious drug offense under the 

ACCA because § 893.135(1)(b)1. “did not include as an element of proof that [the 

defendant] had intended to distribute [the] 200 to 400 grams of cocaine” that he 

possessed. Id. 

This Court reversed, concluding that trafficking by possessing 28 grams or 

more of cocaine, in violation of Florida Statutes § 893.135(1)(b)1., qualifies as an 

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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 

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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 while a lesser Florida drug offense that involved a lower quantity of drug, 

but whose elements matched exactly the federal statute, would qualify. Id. at 1155. 

In short, we concluded that “the Florida statute falls within the broad definition of 

a ‘serious drug offense.’” Id. 

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 Alabama Code § 13A-12-231, 

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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[.]” Ala. Code § 13A-12-

231(2). As in Florida, the Alabama statute is part of a three-tiered scheme for 

punishing drug offenses that includes, from the least serious offense to the most 

serious offense: (1) possession of a controlled substance, (2) distribution or 

possession of a controlled substance with intent to distribute, and (3) trafficking in 

a controlled substance, with trafficking being inferred only when the controlled 

substance involved in the offense is of a minimum quantity level. See Ala. Code 

§§ 13A-12-211, 212. 

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 

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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 Florida Statutes

§ 893.135(1)(b)1. might qualify as a serious drug offense under the ACCA even 

though the act of purchasing cocaine is not expressly enumerated in the ACCA’s 

definition of a serious drug offense. Our Court having previously determined that 

possession of a trafficking amount of cocaine under Florida’s drug trafficking 

statute constitutes possession with the intent to distribute for purposes of the 

ACCA, the only question now before us is whether the purchase of a trafficking 

quantity of cocaine likewise yields the same conclusion. To speak in more precise 

legal terms, we must decide whether the purchase of a trafficking quantity of 

drugs, as specified by the Florida drug trafficking statute, “involves” the 

possession of that drug, as that term is defined in the ACCA. As noted, this is a 

case of first impression for us.10

10 In United States v. Shannon, 631 F.3d 1187 (11th Cir. 2011), we were required to address 

the question whether the Florida drug trafficking statute at issue here, Florida Statutes

§ 893.135(1)(b)1., constituted a “controlled substance offense” under the federal Sentencing 

Guidelines. The Guidelines characterize a defendant as a career offender, subject to an enhanced 

sentence, when that defendant has at last two prior felony convictions of either a crime of 

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Under our Court’s precedent and pattern jury instructions, “possession” 

includes both actual and constructive possession. The pattern instructions provide 

that “‘actual possession’ of a thing occurs if a person knowingly has direct physical 

control of it” and that “‘constructive possession’ of a thing occurs if a person does 

not have actual possession of it, but has both the power and the intention to take 

control over it later.” Eleventh Circuit Pattern Instructions (Criminal Cases) § S6 

(Feb. 2020). We have stated that “[c]onstructive possession exists when the 

defendant exercises ownership, dominion, or control over the item or has the 

power and intent to exercise dominion or control.” United States v. Beckles, 565 

F.3d 832, 841 (11th Cir. 2009) (quotation marks omitted).

violence or a controlled substance offense. See U.S.S.G. § 4B1.1(a). The Guidelines define a 

controlled substance offense as a felony offense “that prohibits the manufacture, import, export, 

distribution, or dispensing of a controlled substance . . . or the possession of a controlled 

substance . . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. 

§ 4B1.2(b) (emphasis added). The Guidelines thus require that the statute prohibit specified acts 

and does not include “purchase” as one of the prohibited acts. Thus, concluding that “the plain 

language of § 4B1.2(b) control[led]” our decision and rejecting an argument that “purchase” was 

synonymous with “possession,” we held that the defendant’s Florida conviction for trafficking 

cocaine did not constitute a controlled substance offense. Shannon, 631 F.3d at 1189.

 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. 

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1. Elements of “Trafficking by Purchase”

The initial question for us to decide then is whether “purchase” under 

Florida Statutes § 893.135(1) involves “possession” as federal law under the 

ACCA defines that term. That necessarily means we have to understand how 

Florida law defines the term “purchase.” Determining what conduct purchasing 

necessarily includes under this Florida trafficking statute, however, has proven to 

be an uncertain task: hence, our need for guidance by the Florida Supreme Court. 

In the first place, not only does the statute fail to set out the elements for a 

“purchase,” but the Florida pattern instructions for this offense nowhere define the 

term. The instructions do define “sell”: “‘Sell’ means to transfer or deliver 

something to another person in exchange for money or something of value or a 

promise of money or something of value.” Fla. Std. Jury Instr. (Crim) § 25.7(a) 

(2019). 

From that, one might reasonably assume that “purchase” would be defined 

as the converse of “sell,” meaning that a purchaser would have both paid for and 

received delivery. Indeed, common dictionary definitions suggest that a completed 

purchase requires both payment for and delivery of the purchased item. For 

example, Webster’s defines the term purchase to mean “to obtain by paying money 

or its equivalent.” Webster’s II New Riverside University Dictionary 955 (1988) 

(emphasis added). The Oxford English Dictionary similarly defines the term 

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purchase to mean “to acquire in exchange for payment in money or an equivalent.” 

Oxford English Dictionary (3d ed. 2007) (emphasis added). If either definition is 

applicable to Florida Statutes § 893.135(1), a defendant would presumably be 

required to pay for and obtain or acquire a trafficking quantity of cocaine in order 

to violate the statute by purchasing cocaine. And obtaining or acquiring cocaine 

would certainly seem to involve possession of that cocaine. Moreover, even if 

payment is all that is required to constitute a completed purchase under the Florida 

statute, the question would then become whether that conduct could still constitute 

constructive possession, which, to repeat, occurs if a defendant has the power and 

intent to exercise dominion or control over the controlled substance. 

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 

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statute, § 893.135(1). And, as explained below, we are unable to do so under the 

existing caselaw. 

First, some background as to the statutory options at the State’s disposal in 

this context. As noted, Florida Statutes § 893.135(1) characterizes as drug 

trafficking any one of six acts taken with regard to a trafficking quantity of drugs, 

two of which are possession and purchasing. Although this statute makes no 

express provision for an attempted violation, a person can be convicted of 

attempted trafficking pursuant to a default statute—Florida Statutes § 777.04—

which is Florida’s general statute addressing an attempt, solicitation, or conspiracy 

to commit a crime. Suarez v. State, 635 So. 2d 154, 155 (Fla. 2d DCA 1994). 

Section 777.04 provides that “[a] person who attempts to commit an offense 

prohibited by law and in such attempt does any act toward the commission of such 

offense, but fails in the perpetration or is intercepted or prevented in the execution 

thereof, commits the offense of criminal attempt . . . .” Conviction pursuant to 

Florida’s general attempt statute, however, results in a lower sentencing range than 

would conviction under the substantive statute for the offense. Suarez, id. Thus, if 

the offense attempted is a felony of the first degree, as is the Florida drug 

trafficking statute, the offense of criminal attempt to violate that statute becomes a 

felony of the second degree, § 777.04(4)(c), and the penalty for that attempt is a 

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maximum penalty of 15 years, with no mandatory-minimum applicable, 

§ 777.082(6)(b)(2). 

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 another person to commit any act 

prohibited by [the substantive provisions of the trafficking statute] commits a 

felony of the first degree and is punishable as if he or she had actually committed 

such prohibited act.” Fla. Stats. § 893.135(5). Thus, a completed substantive act 

under the trafficking statute or a conspiracy to commit one of the listed substantive 

acts receives the same punishment; a conviction based on an attempt to violate the 

statute under § 777.04, however, triggers a reduced punishment. Suarez, 635 So. 

2d at 155 (affirming the mandatory-minimum sentence required under § 893.135 

for the defendant’s conviction for conspiracy to traffic in drugs, but reversing that 

same sentence for his conviction for attempting to traffic in drugs). In the case 

before us, Conage was convicted of actually trafficking in drugs under 

§ 893.135(1), not of attempting to traffic in drugs. 

In the present case, none of the authorities cited by Conage define the term 

“purchase” as used in Florida Statutes § 893.135(1). In fact, the parties have cited 

only one case that actually involves a trafficking conviction based on purchasing 

drugs: State v. Swider, 654 So. 2d 562, 563 (Fla. 4th DCA 1995). Yet, the issue 

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before the Swider court did not concern the definition of “purchase,” and it offers 

us no help in defining that term in this case.11 

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 

11 In Swider, the two defendants—Swider and Swidersky—pled guilty to jointly purchasing 

cocaine in an amount (45 grams) that met the threshold for conviction under the trafficking 

statute, but they sought a more lenient sentence than that statute permits, arguing that they were 

first offenders and drug addicts who had purchased the drugs for their own and their friends’ 

personal use, not for resale. 654 So. 2d at 563. The Florida Fourth District Court of Appeals 

rejected the argument. Id. Cf. White, 837 F.3d at 1230 (noting that our precedent has held that 

possession of a controlled substance “‘for someone else’s use’ necessarily involves possession 

‘with the intent to distribute’ it to another person” for purposes of federal law.) Swider nowhere 

discusses the question before us—whether one can be guilty of purchasing a drug under 

§ 893.135 without also actually or constructively possessing that drug. 

12 In Sobrino, the defendant had not yet handed over the money nor been handed the drugs 

when he was arrested.

13 In the familiar jargon of the drug interdiction world, a “reverse sting” occurs when an 

undercover law enforcement officer negotiates the sale of illegal drugs to the putative defendant, 

who, in this scenario, becomes the purchaser. 

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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 that a putative purchaser does not aid and abet 

delivery; instead, “[a] buyer or receiver commits the crime of possession or 

attempted possession, not delivery.” Id. at 1335.

In Cunningham v. State, 647 So. 2d 164 (Fla. 1st DCA 1994), the defendant 

was convicted of purchasing marijuana in violation of § 893.13,14 not the drug 

trafficking statute § 893.135(1). Nevertheless, we assume the definition of the 

term “purchase” would be the same in both statutes. The defendant had been 

arrested after he “pulled out ‘a roll of money’” to purchase the marijuana and the 

undercover officer had displayed the marijuana to be sold, but before the officer 

14 Florida Statutes § 893.13, which is a less serious drug offense than is drug trafficking under 

§ 893.135(1), was amended in 1993 to delete “purchase” as a potential means of committing the 

offenses prohibited by that statute. See Fla. Stats. § 893.13 (1994). 

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had laid hands on the money tendered. The Florida appellate court reversed the 

conviction “because [defendant] was arrested before the transaction could be 

completed.” Id. at 166. The appellate court concluded that there was sufficient 

evidence of defendant’s possession of marijuana with intent to purchase it, but not 

of an actual purchase. Id. A member of the panel dissented, arguing that “a 

completed sale” had occurred even though the defendant had not “physically 

hand[ed] [over] money to the officers. The sale with which [defendant] was 

charged took place at the point in time when officers delivered the marijuana to 

[defendant], and [defendant] agreed to pay for the marijuana . . . . [O]nce the 

officers delivered the marijuana to [defendant] following [defendant’s] agreement 

to pay for it, the contract was no longer executory and a sale had taken place.” Id. 

at 167. 

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 

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obliquely on the notion of a “completed sale” in upholding the defendant’s 

conviction for trafficking under § 893.135(1). Id. at 985. The case involved a 

reverse sting in which the defendant purchaser had both paid for and been handed 

the drugs before his arrest. The opinion does not indicate whether the trafficking 

charge was based on the defendant’s possession or his purchase of drugs, but it 

concluded that the defendant had possession and that “the evidence established a 

completed sale.” Id. It is uncertain, though, whether the State had relied on a 

purchase theory—with the appellate court suggesting that a completed sale was 

necessary to support such a theory—or whether the State had charged only 

trafficking by possession. 

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 requires both possession and 

the exchange of money, while the offense of possession does not require the 

exchange of money or that there be any transaction at all. 

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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 

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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. 

Florida Statutes § 777.011. In short, like its equivalent federal aiding and abetting 

statute, codified at 18 U.S.C. § 2(a), the Florida statute punishes aiders and abettors 

the same as principal offenders. Both statutes require that the aider and abettor 

“have the intent to aid the commission of a crime and do some act that contributed 

to the offense.” Boston v. United States, 939 F.3d 1266, 1271 (11th Cir. 2019).

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In Ras, the case relied on by Conage, the defendant was convicted of 

trafficking over 28 grams of cocaine in violation of Florida Statutes

§ 893.135(1)(b)1. The evidence showed that defendant Ras and his cohort, 

Raymond Frank, met with undercover detectives in the latter’s motel room. Frank 

told the detectives that Ras wanted to purchase cocaine. Ras then negotiated the 

price for the three ounces of cocaine. The detectives agreed, and set up a time to 

meet again to deliver the cocaine to Ras and his associate. Ras returned at the 

appointed hour, this time accompanied by a man named Griswold. Griswold had 

the money and, after Ras gave Griswold a pocketknife to open the bag of cocaine, 

Griswold took a sample of the cocaine, snorting and tasting it. Griswold then gave 

the detective the money and picked up the package of cocaine. Immediately 

thereafter, both Ras and Griswold were arrested. Ras, 610 So. 2d at 25.

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 

15 In its indictment, the State had included all of the acts set out in § 893.135(1), except for 

“purchase.” Ras, 810 So. 2d at 25.

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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 

16 For an explanation of this evidentiary rule followed in Florida, see Burks v. State, 613 So. 

2d 441 (Fla. 1993).

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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 the aiding and abetting of a purchase—that the court made the 

statement on which Conage now seizes. The statement: that although Ras did not 

aid and abet Griswold’s possession, he “likely” aided and abetted the latter’s 

purchase of the cocaine. Id. From this dicta, Conage argues that the appellate 

court was necessarily saying that one can be guilty of purchasing drugs without 

also being guilty of possessing—constructively or actually—those drugs. 

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 

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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, 

17 As best we can determine, in the twenty-eight years since its issuance, Ras has never been 

cited by a Florida appellate court for the proposition that Conage attributes to it. 

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assist or advise the other person or persons to actually [commit] [attempt to 

commit] the crime . . . .” Fla. Std. Jury Instr. (Crim) § 3.5 (a) (2019). 

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 gobetween 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”).

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So then on what ground did the appellate court dismiss what seems to be a 

natural conclusion that Ras had assisted Griswold in the latter’s coming into 

possession of the cocaine? As noted, the appellate court cited three cases18 holding 

that a defendant does not aid and abet possession of illegal drugs merely because 

he has aided and abetted the sale of those drugs. Ras, 610 So. 2d at 26. Yet, each 

of these cases dealt with a defendant who had been convicted of possession based 

on the assistance he provided in selling illegal drugs. As the cases point out, when 

one helps a seller get rid of his drugs, one is not helping the seller possess the drug; 

instead, one is helping the seller dispose of the drug. For example, in Daudt, the 

defendant helped the seller make his sale, but the defendant never himself 

possessed the marijuana. Daudt v. State, 368 So. 2d 52 (Fla. 2d DCA 1979). 

Hence, the appellate court there concluded that, while he was guilty of aiding and 

abetting a sale, the defendant was not guilty of aiding and abetting the seller in 

possessing the illegal drugs. As the court pointed out, “[The seller] already 

possessed the marijuana; there is no showing that appellant was of any help to [the 

seller] in either acquiring it or retaining possession of it. On the contrary, [the 

defendant] aided [the seller] in Divesting himself of it.” Id. at 54. In contrast, 

when a defendant helps a cohort come into possession of drugs, he has helped that 

18 Stephenson v. State, 371 So. 2d 554 (Fla. 2d DCA 1979); Daudt v. State, 368 So. 2d 52 

(Fla. 2d DCA 1979); and Kickasola v. State, 405 So. 2d 200 (Fla. 3d DCA 1981).

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cohort possess the drugs and, so long as the defendant has done so with the intent 

to achieve that result, the Florida standard for proving aiding and abetting would 

seemingly have been met. 

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, 

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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 Supreme Court, 

whose guidance we will gratefully and respectfully accept. 

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.” Fla. Const. art. 

V, § 3(b)(6). Consistent with that grant of authority, this Court has found 

certification to the Florida Supreme Court warranted where an appeal “depends on 

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resolution of questions of unsettled Florida law” that “will affect many other 

cases.” Tobin v. Michigan Mut. Ins. Co., 398 F.3d 1267, 1274 (11th Cir. 2005) 

(“Where there is doubt in the interpretation of state law, a federal court may certify

the question to the state supreme court to avoid making unnecessary Erie guesses 

and to offer the state court the opportunity to interpret or change existing law.”). 

For the reasons discussed above, this case falls into that category. Accordingly, we 

certify to the Florida Supreme Court the following questions:

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 

19 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court 

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to 

October 1, 1981.

Case: 17-13975 Date Filed: 09/30/2020 Page: 40 of 41
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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.

Case: 17-13975 Date Filed: 09/30/2020 Page: 41 of 41