[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-16457

Non-Argument Calendar

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

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

CORDELL FELIX, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 8, 2017)

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

PER CURIAM: 

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

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

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

denying his motion to suppress evidence found during a Terry1 stop. He also 

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

I. BACKGROUND 

A. Facts

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

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

that had occurred on Palm Beach Boulevard.2

 Officer Ursitti was familiar with 

that neighborhood because robberies frequently occur there and the suspects often

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

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

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

and Grill. 

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

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

 1

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

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

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

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

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

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

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

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

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

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

hunched over appearing to conceal something. 

Footage from Officer Ursitti’s body camera video showed Defendant 

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

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

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

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

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

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

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

under arrest.3

 

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

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B. Procedural History 

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

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

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

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

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

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

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

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

mile away from the location of the alleged robbery. 

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

court determined that Officer Ursitti had reasonable suspicion to stop Defendant

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

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

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

did not violate Defendant’s Fourth Amendment rights. 

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

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

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

1.4

 

In anticipation of sentencing, the probation officer prepared a Presentence 

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

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

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

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

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

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

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

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

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

168 to 210 months’ imprisonment. However, given the application of the armedcareer-criminal enhancement, Defendant’s guideline range became 180 to 210 

months’ imprisonment. 

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

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

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

judgment of acquittal as to Count 2. 

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

Career Criminal Act (“ACCA”). 

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

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

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

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

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

consider whether the 2007 drug convictions occurred on separate occasions. 

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

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

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

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

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

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

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

imprisonment. This appeal followed. 

II. DISCUSSION

A. Motion to Suppress 

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

Amendment because it was not supported by reasonable suspicion that Defendant 

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

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

particularized fact sufficient to support a finding of reasonable suspicion. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

determined from the totality of the circumstances and from the collective 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

While driving through one of the surrounding neighborhoods en route to 

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

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

had occurred a few minutes earlier.

5

 See United States v. Hunter, 291 F.3d 1302, 

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

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

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

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

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

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

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

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

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

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

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

circles.” 

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

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

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

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

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

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

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

required.

 

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

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

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The district court concluded that Officer Ursitti did possess reasonable 

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

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

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

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

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

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

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

argument because we conclude that—even leaving aside subsequent behavior 

preceding the frisk which behavior the Government characterizes as quite 

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

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

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

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

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

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

denying Defendant’s motion to suppress. 

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

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

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

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

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

Congress’s power under the Commerce Clause). 

C. ACCA Enhancement 

Defendant further argues that his sentence was improperly enhanced under 

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

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

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

not a violent felony. 

We review de novo whether a prior conviction qualifies as an ACCApredicate offense and whether the convictions occurred on separate occasions for 

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

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

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

770 (11th Cir. 2010).

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

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

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

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

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

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

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

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

use Shepard6

-approved documents, such as the charging documents, plea 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ACCA’s separate-occasions requirement). 

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

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

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

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

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

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

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

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

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

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

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

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

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

court may refer to Shepard documents when determining whether two offenses 

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

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

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

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

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

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

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

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

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

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

review is limited to plain error.7

 See United States v. Rosario-Delgado, 198 F.3d 

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

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

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

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

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

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

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

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

Cir. 2013) (alteration accepted). 

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

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

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

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

the ACCA). 

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

and Sixth Amendments because he was sentenced above the statutory maximum 

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

reasonable doubt is foreclosed by the Supreme Court’s decision in AlmendarezTorres v. United States, 523 U. S. 224 (1998). See Almendarez-Torres, 523 U.S. at 

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

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

Because Defendant qualifies for the ACCA enhancement based on his three 

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

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

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

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

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

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

sentenced Defendant as an armed career criminal. 

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III. CONCLUSION

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

AFFIRMED. 

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MARTIN, Circuit Judge, concurring:

I concur in the result.

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