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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13611
Non-Argument Calendar
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D.C. Docket No. 3:17-cr-00015-CAR-CHW-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYAN SHAMAR LITTLE,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(June 17, 2019)
Before WILSON, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
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Bryan Little pleaded guilty to possession of a firearm by a convicted felon
under 18 U.S.C. §§ 922(g)(1) and 924(e). The district court sentenced him to 180-
months’ imprisonment. The sentence included an enhancement for Little’s prior
Georgia convictions for possession of cocaine with intent to distribute. Little now
appeals, arguing that his prior convictions do not qualify as controlled substances
offenses under the Armed Career Criminal Act (ACCA) or the United States
Sentencing Guidelines. We disagree and affirm.
We review de novo a question of law under the Sentencing Guidelines.
United States v. Smith, 54 F.3d 690, 691 (11th Cir. 1995). We also review de novo
whether a prior conviction qualifies as a controlled substance offense under the
Guidelines. United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017).
A defendant is a career offender under the Guidelines if he has at least two
prior felony convictions for either a crime of violence or a controlled substance
offense. U.S.S.G. § 4B1.1(a). The Guidelines define a controlled substance
offense as:
[A]n offense under federal or state law, punishable by
imprisonment for a term exceeding one year, 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). To determine whether the predicate offense “prohibits” the
listed activities, we apply the categorical approach and compare “the definition in
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the Guidelines with the statutory offense, not the conduct underlying the
conviction.” Lange, 862 F.3d at 1293 (quotations omitted). When the Guidelines
provide a definition for predicate offenses, we compare “the elements of the crime
of conviction to the generic form of the offense as defined by the States.” United
States v. Lockley, 632 F.3d 1238, 1242 (11th Cir. 2011) (emphasis added).
Little first argues that his prior convictions cannot qualify as controlled
substance offenses because they might rest on the theory that he was a “party to the
crime” under O.C.G.A. § 16-2-20. But he was not charged, let alone convicted,
under O.C.G.A. § 16-2-20. Little’s prior convictions were for possession of
cocaine with intent to distribute under O.C.G.A. § 16-13-30(b), which makes it
unlawful to “manufacture, distribute, dispense, administer, sell, or possess with
intent to distribute any controlled substance.” Because Georgia’s party to a crime
statute was not Little’s “crime of conviction,” we decline to look beyond
O.C.G.A. § 16-13-30(b)—the statute under which Little was convicted.
Little next argues that inchoate crimes like Georgia’s party to a crime
offense do not qualify as controlled substance offenses. Little contends that
Application Note 1 to U.S.S.G. § 4B1.2(b), which includes aiding and abetting in
the definition of controlled substance offenses, is inconsistent with the Guidelines.
But we rejected this exact argument in United States v. Smith, 54 F.3d 690, 693
(11th Cir. 1995). In Smith, we held that Guidelines commentary is “authoritative
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unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” 54 F.3d at 693. We concluded
Application Note 1 of § 4B1.2 “does not run afoul of the Constitution . . . nor is it
inconsistent with, or a plainly erroneous reading of, sections 4B1.1 or 4B1.2.” Id.
Application Note 1 thus “constitutes a binding interpretation.” Id. (quotations
omitted). Smith forecloses Little’s argument to the contrary. See United States v.
Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (explaining under the prior
precedent rule, we are bound by “a prior binding precedent unless and until it is
overruled by this Court en banc or by the Supreme Court” (quotation mark
omitted)).
Because Little makes no argument that O.C.G.A. § 16-13-30(b) does not
otherwise qualify as a controlled substance offense, the district court did not err in
using Little’s prior convictions to enhance his sentence. Accordingly, we affirm.
AFFIRMED.
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