[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11971

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

NISHERA REMON JOHNSON, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:20-cr-00063-JA-PRL-2

____________________

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

Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.

PER CURIAM:

Nishera Johnson appeals from her convictions and total sentence of 200 months’ imprisonment for conspiracy to distribute and 

possess with intent to distribute illicit drugs—as well as possessing 

a firearm and ammunition as a convicted felon. She argues that the 

district court erred in denying her motion for a judgment of acquittal as to both counts. In particular, she contends that the government did not present sufficient evidence for a reasonable jury to 

infer that she knew of and voluntarily joined a drug conspiracy 

with her husband, Corey Andrew Carnegie, and that she constructively possessed a firearm discovered in a dresser in their master 

bedroom. She also argues that the district court abused its discretion in admitting evidence of her prior cocaine-related convictions 

because such evidence was unduly prejudicial and lacked probative 

value. Finally, she contends that the district court erred in sentencing her as an armed career criminal because her state cocaine-related convictions did not qualify as serious drug offenses under the 

Armed Career Criminal Act (“ACCA”) and the evidence did not 

show that her prior convictions occurred on different occasions. 

We will affirm.

The facts are known to the parties, and we repeat them here 

only as necessary to decide the case. 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 2 of 14
23-11971 Opinion of the Court 3

I

We review a challenge to the sufficiency of the evidence and 

the denial of a motion for a judgment of acquittal under Federal 

Rule of Criminal Procedure 29 de novo. United States v. Chafin, 808 

F.3d 1263, 1268 (11th Cir. 2015). We will uphold the district court’s

denial of a Rule 29 motion for a judgment of acquittal “if a reasonable trier of fact could conclude that the evidence establishes the 

defendant’s guilt beyond a reasonable doubt.” United States v. 

Holmes, 814 F.3d 1246, 1250 (11th Cir. 2016) (citation omitted). We 

view all facts and inferences in the light most favorable to the government. United States v. Clay, 832 F.3d 1259, 1293 (11th Cir. 2016). 

We will not overturn a jury’s verdict if there is any reasonable construction of the evidence that would have allowed the jury to find 

the defendant guilty beyond a reasonable doubt. Id. at 1294.

“The test for sufficiency of evidence is identical regardless of 

whether the evidence is direct or circumstantial, and no distinction 

is to be made between the weight given to either direct or circumstantial evidence.” United States v. Mieres-Borges, 919 F.2d 652, 656–

57 (11th Cir. 1990) (quotation marks omitted). But where “the government relies on circumstantial evidence, reasonable inferences, 

not mere speculation, must support the conviction.” United States 

v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008). 

To convict a defendant under 21 U.S.C. § 846 for conspiracy 

to possess with intent to distribute a controlled substance, the government must prove beyond a reasonable doubt that “(1) there was 

an agreement between two or more people to violate § 841(a)(1); 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 3 of 14
4 Opinion of the Court 23-11971

(2) the defendant knew about the agreement; and (3) the defendant 

voluntarily joined the agreement.” United States v. Colston, 4 F.4th 

1179, 1187 (11th Cir. 2021). All elements can be proven by either 

direct or circumstantial evidence. United States v. Poole, 878 F.2d 

1389, 1391–92 (11th Cir. 1989). A defendant’s mere presence at the 

scene of key events or association with a coconspirator is insufficient to prove membership or involvement in the drug conspiracy, 

but presence may be a material or probative factor that the jury 

considers in reaching its decision. United States v. Miranda, 425 F.3d 

953, 959 (11th Cir. 2005). 

Here, the district court did not err in denying Johnson’s Rule 

29 motion as to Count One because, viewing all the facts and inferences in favor of the government, the evidence was sufficient for a 

reasonable jury to find beyond a reasonable doubt that Johnson 

conspired with Carnegie to possess and distribute drugs. Holmes, 

814 F.3d at 1250; Clay, 832 F.3d at 1293. While Johnson’s mere 

presence at Carnegie’s home or association with Carnegie was insufficient to show her involvement in a drug conspiracy with him, 

a reasonable jury could have found that she knew of and voluntarily joined Carnegie’s drug-trafficking operation from the totality of 

the evidence that the government presented. Miranda, 425 F.3d at 

959–60. Accordingly, we affirm the denial of Johnson’s motion for 

a judgment of acquittal as to Count One. 

II

Under 18 U.S.C. § 922(g)(1), it is unlawful for anyone who 

has been convicted of a felony to knowingly possess a firearm that 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 4 of 14
23-11971 Opinion of the Court 5

has been shipped or transported in interstate commerce. The following elements must be satisfied: (1) knowing status as a convicted felon and (2) possession (3) of a firearm (4) in or affecting 

interstate commerce. See Rehaif v. United States, 588 U.S. 225, 230–

231 (2019). Regarding a defendant’s status, the government must 

prove that the defendant knew that he was a convicted felon. See 

id.

Next, possession of a firearm may be either actual or constructive. United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011).

A defendant’s presence in the vicinity of a firearm or mere association with another who possesses it is insufficient to show possession. Id. At the same time, the firearm need not be on or near the 

defendant’s person to amount to knowing possession. Id. To show 

constructive possession, the government must prove, through either direct or circumstantial evidence, that the defendant (1) “was 

aware of or knew of the presence of the firearm” and (2) “had the 

intent and ability to later exercise dominion and control over the 

firearm.” Id. 

As to the first element, we recognize deliberate ignorance as 

an alternative to an actual-knowledge requirement that applies 

when a defendant is suspicious but does not make further inquiries 

so as to remain ignorant. United States v. Hristov, 466 F.3d 949, 952 

(11th Cir. 2006). Sufficient evidence supports a finding of deliberate 

ignorance if the defendant “was aware of a high probability of the 

existence of the fact in question and purposely contrived to avoid 

learning all the facts in order to have a defense in the event of a 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 5 of 14
6 Opinion of the Court 23-11971

subsequent prosecution.” United States v. Garcia-Bercovich, 582 F.3d 

1234, 1237–38 (11th Cir. 2009) (citation omitted). 

As to the second element, the defendant may exercise dominion and control over the firearm either personally or through 

another. Perez, 661 F.3d at 576–77. Constructive possession may 

be established by evidence that the defendant had control over contraband or over the premises in which contraband was concealed. 

United States v. Davis, 679 F.2d 845, 852–53 (11th Cir. 1982). Additionally, “a defendant’s knowing participation in a joint criminal 

venture in which a particular firearm is intended to play a central 

part permits the jury to reasonably conclude that the defendant 

constructively possessed that gun,” even if the defendant never intended to use the firearm herself, because she shares in her coparticipants’ intent and jointly possesses the firearm as part of a shared 

armed criminal enterprise. Perez, 661 F.3d at 576–77. Thus, we 

have determined that sufficient evidence supported a jury finding 

that a defendant jointly and constructively possessed firearms as a 

felon when he participated in an armed robbery conspiracy centered around the use of firearms. Id. at 578–79. 

Johnson first contends that a reasonable jury could not have 

inferred, based on the government’s evidence, that she knew of any 

of the firearms in the house, a required element of constructive 

possession, but this argument fails. Specifically, she asserts that the 

government unreasonably assumed she must have known firearms 

were present merely because she lived in Carnegie’s home where 

they were recovered. But the government’s evidence showed not 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 6 of 14
23-11971 Opinion of the Court 7

only that Johnson stayed in the home but that she specifically interacted with the dresser where the gun was found. A reasonable 

jury could have inferred that Johnson likely knew of the gun because testimony revealed that Johnson’s driver’s license, bank cards 

in her name, and women’s perfume were found on top of the 

dresser. See Clay, 832 F.3d at 1293. 

Second, Johnson contends that a reasonable jury could not 

have inferred, based on the government’s evidence, that she exercised dominion and control over any of the firearms, but this argument also fails. A reasonable jury could have found that Johnson 

had dominion and control over the gun by virtue of her control 

over the master bedroom, where she lived according to her address 

on various papers and where she stored her personal effects. See 

Davis, 679 F.2d at 852–53. Accordingly, we affirm the denial of 

Johnson’s motion for a judgment of acquittal as to Count Three. 

III

We review a district court’s decision to admit evidence under Rule 404(b) for an abuse of discretion. United States v. Brown, 

587 F.3d 1082, 1091 (11th Cir. 2009). A district court can abuse its 

discretion when it applies an incorrect legal standard, follows improper procedures in making the determination, or makes clearly 

erroneous factual findings. United States v. Brown, 415 F.3d 1257, 

1266 (11th Cir. 2005). If we find that the district court abused its 

discretion by admitting Rule 404(b) evidence, the erroneously admitted evidence is harmless if the government introduces sufficient 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 7 of 14
8 Opinion of the Court 23-11971

evidence, uninfected by error, to support the verdict. United States 

v. Langford, 647 F.3d 1309, 1323 (11th Cir. 2011). 

To be admissible under Rule 404(b), that evidence must be 

“(1) relevant to one of the enumerated issues other than the defendant’s character, (2) supported by sufficient evidence to allow a 

jury to determine that the defendant committed the act, and (3) not 

unduly prejudicial under the standard set forth in Rule 403.” United 

States v. Barron-Soto, 820 F.3d 409, 417 (11th Cir. 2016). Evidence of 

a crime, wrong, or other act is not admissible as proof of the defendant’s character in order to show that she acted in accordance 

with her character on a particular occasion. Fed. R. Evid. 404(b)(1).

That said, such evidence may be admissible to prove, among other 

things, intent, knowledge, and absence of mistake. Fed. R. 

Evid. 404(b)(2). In every conspiracy case, a defendant’s not-guilty 

plea puts her intent at issue, unless she takes affirmative steps to 

remove her state of mind from issue. United States v. Matthews, 

431 F.3d 1296, 1311 (11th Cir. 2005). And “[e]vidence of prior drug 

dealings is highly probative of intent to distribute a controlled substance, as well as involvement in a conspiracy.” Barron-Soto, 

820 F.3d at 417 (quotation marks omitted and citation omitted). 

The district court may exclude relevant evidence if its probative value is substantially outweighed by, among other things, a 

danger of undue prejudice. Fed. R. Evid. 403. In determining 

whether Rule 404(b) evidence was unduly prejudicial, we consider

whether the defendant’s intent was at issue, the overall similarity 

of the charged and extrinsic offenses, and the temporal proximity 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 8 of 14
23-11971 Opinion of the Court 9

between the charged and extrinsic offenses. United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007). “A prior crime need not 

be factually identical in order for it to be probative.” United States 

v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013). A district court can 

mitigate any unfair prejudice possibly caused by the admission of 

Rule 404(b) evidence by issuing a limiting instruction on the use of 

that evidence. Edouard, 485 F.3d at 1346.

We have declined to adopt a bright-line rule regarding temporal proximity between the extrinsic act and the charged offense.

Matthews, 431 F.3d at 1311. Although the amount of time between 

the prior crime and the charged offense may affect the probative 

value of the prior crime, district courts are afforded broad discretion to determine whether an offense is too remote to be probative.

Id. at 1311–12. We have held that an intervening period of 15 years 

did not render extrinsic evidence of small-scale marijuana convictions inadmissible despite the convictions’ “differing nature and remoteness in time” from the defendant’s charged participation in a

large-scale cocaine deal. United States v. Lampley, 68 F.3d 1296, 1300

(11th Cir. 1995); see also Sterling, 738 F.3d at 239 (affirming admission of a 15-year-old prior crime). 

Here, the district court did not abuse its discretion in admitting evidence of Johnson’s prior convictions under Rule 404(b). 

The court admitted the evidence not to show that Johnson acted 

in accordance with a propensity toward criminality but for the specific, admissible reasons of showing she acted with intent and not 

out of mistake. Fed. R. Evid. 404(b)(1), (2); Barron-Soto, 820 F.3d at 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 9 of 14
10 Opinion of the Court 23-11971

417. And the probative value of the prior convictions was not substantially outweighed by a danger of undue prejudice because 

Johnson’s intent was at issue, her prior convictions were similar in 

nature to the charged conspiracy, and the court issued limiting instructions to mitigate any prejudicial effect. Barron-Soto, 

820 F.3d at 417; Edouard, 485 F.3d at 1345–1346. 

Accordingly, we affirm the admission of evidence of Johnson’s prior convictions. 

IV

We review de novo whether a prior state conviction qualifies as a serious drug offense under the ACCA. United States v. Jackson (Jackson II), 55 F.4th 846, 849–50 (11th Cir. 2022). 

If a party does not raise an argument before the district 

court, we review only for plain error. United States v. McNair, 605 

F.3d 1152, 1222 (11th Cir. 2010). To preserve an objection, the objection must be clear enough to inform the district court of its legal 

basis. United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006). To 

establish plain error, a defendant must show: (1) an error, (2) that 

was plain or obvious, (3) that affected the defendant’s substantial 

rights, and (4) that seriously affected the fairness, integrity, or public reputation of the proceedings. United States v. Aguilar-Ibarra, 740 

F.3d 587, 592 (11th Cir. 2014). For an error to be plain, it must be 

plain under controlling precedent or the language of a statute or 

rule. Id. 

The ACCA requires that any person who violates 18 U.S.C. 

§ 922(g) serve a mandatory minimum sentence of 15 years if she

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 10 of 14
23-11971 Opinion of the Court 11

has three prior convictions for violent felonies or serious drug offenses, or both, “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The ACCA defines a “serious drug 

offense,” in relevant part, as “an offense under State law, involving 

manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance,” with controlled substances defined by the Controlled Substances Act, 21 U.S.C. § 802. 

Id. § 924(e)(2)(A)(ii). Section 102 of the Controlled Substances Act 

defines a “controlled substance” as any substance on the federal 

controlled substances schedules. 21 U.S.C. §§ 802(6), 812. Federal 

law governs the meaning of terms in the ACCA, and state law governs the elements of state-law crimes. Jackson II, 55 F.4th at 850. 

We apply the categorical approach to determine whether a 

defendant’s state conviction is a serious drug offense under the 

ACCA. Id. Under the categorical approach, we consider the statutory definition of the state offense rather than the facts of the crime 

itself. Id. A state conviction qualifies only if the state statute under 

which the conviction occurred defines the offense in the same way 

as, or more narrowly than, the ACCA’s definition of a serious drug 

offense. Id. 

Under Florida law, a person who sells or possesses with intent to sell, manufactures, or delivers a controlled substance named 

in § 893.03(2)(a) commits a felony in the second degree. Fla. Stat. 

§ 893.13(1)(a)(1). Section 893.03 outlines Florida’s controlled substances schedules and includes cocaine. Id. § 893.03(2)(a)(4). Any 

person who sells, purchases, manufactures, delivers, or brings into 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 11 of 14
12 Opinion of the Court 23-11971

the state 28 grams or more of cocaine commits the first-degree felony of trafficking in cocaine. Fla. Stat. § 893.135(1)(b)(1). Florida’s 

controlled substances schedules included ioflupane until 2017. 

Jackson II, 55 F.4th at 851 & n.3. The federal controlled substance 

schedules also included ioflupane until 2015. Id. at 851. 

In Jackson I, we vacated and remanded a defendant’s 

ACCA-enhanced sentence, holding that the appellant’s Florida cocaine-related offenses did not qualify as serious drug offenses under 

the ACCA. United States v. Jackson (Jackson I), 36 F.4th 1294, 1306

(11th Cir. 2022). It determined that the federal controlled substances schedules that defined a serious drug offense under the 

ACCA were those in effect when the defendant committed his federal offense and that those schedules did not cover ioflupane at the 

time he committed his federal offense. Id. at 1299–1302. We found

that since the relevant Florida statute covered ioflupane when he 

was convicted of his prior cocaine-related offenses, the Florida statute’s controlled-substance element was broader than the relevant 

version of the federal controlled substances schedules, and his prior 

cocaine-related convictions thus did not qualify as serious drug offenses. Id. at 1303–04. We vacated the opinion in Jackson I on September 8, 2022. 

In Jackson II, we held that the appellant’s Florida cocaine-related convictions qualified as serious drug offenses. 55 F.4th at 861–

62. We held that the ACCA’s definition of a serious drug offense 

incorporates the version of the federal controlled substances schedules in effect when the defendant was convicted of the prior state 

USCA11 Case: 23-11971 Document: 44-1 Date Filed: 06/13/2024 Page: 12 of 14
23-11971 Opinion of the Court 13

drug offense. Id. at 861. It determined that the appellant’s 1998 and 

2004 Florida cocaine-related convictions qualified as serious drug 

offenses because Florida’s controlled substances schedules included ioflupane until 2017 and the federal controlled substance 

schedules also included ioflupane until 2015. Id. at 851 & nn.3–4, 

861. 

In Wooden, the Supreme Court clarified the language of the 

ACCA requiring predicate convictions to be committed on different occasions, noting that several factors may be relevant to that 

determination but stating that a single factor, especially of time or 

place, can differentiate separate occasions from a single, uninterrupted course of conduct. Wooden v. United States, 594 U.S. 360, 

366–371 (2022). In United States v. McCloud, we stated that courts 

may make specific findings of fact, including whether criminal offenses occurred on separate occasions, based on undisputed statements in the PSI. 818 F.3d 591, 595 (11th Cir. 2016). 

An appellant abandons a claim when he “does not plainly 

and prominently raise it, for instance by devoting a discrete section 

of his argument to those claims,” where he makes it only in a passing reference, or addresses it in a perfunctory manner without reasoning or citations to authorities in support. Sapuppo v. Allstate Floridian Ins., Co., 739 F.3d 678, 681 (11th Cir. 2014) (quotation marks 

omitted). An appellant may also abandon an issue by merely stating that an issue exists, without further argumentation or discussion, which precludes consideration of the issue on appeal. Singh 

v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009). 

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

Here, Johnson’s argument that she is not an armed career 

criminal because her Florida cocaine-related convictions do not 

qualify as serious drug offenses is foreclosed by Jackson II. See 55 

F.4th at 861–62. Additionally, Johnson contends for the first time 

on appeal that her prior offenses were not committed on different 

occasions, but she did not support this claim with any reasoning, 

law, or discussion and did not dispute the facts related to the timing 

of her prior offenses at any point. Accordingly, we affirm Johnson’s 

sentence. 

AFFIRMED.

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