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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-15233
Non-Argument Calendar
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D.C. Docket No. 3:17-cr-00221-MMH-JBT-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
XAVIER THOMAS ALEXANDER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 6, 2020)
Before JORDAN, GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
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Xavier Alexander appeals his 120-month sentence for conspiracy to
distribute cocaine, challenging the district court’s determination that he is a career
offender for sentencing purposes based on his two prior state felony convictions
for sale of cocaine and possession of cocaine with intent to sell. See Fla. Stat.
§ 893.13. On appeal, Alexander argues that these crimes cannot be “controlled
substance offenses” that trigger the career-offender designation under the
Sentencing Guidelines because (1) the more serious offense of Florida cocaine
trafficking is not considered a controlled substance offense, and (2) the Florida
statute defining his offenses, § 893.13(1) of the Florida Statutes, does not contain a
mens rea requirement as to the illicit nature of the substance involved. These
arguments are foreclosed by the plain language of the Sentencing Guidelines and
by binding precedent.
We review de novo the question whether a defendant qualifies as a career
offender under the Sentencing Guidelines. United States v. Pridgeon, 853 F.3d
1192, 1198 n.1 (11th Cir. 2017). To be a career offender, a defendant must have
two or more prior felony convictions that qualify as “either a crime of violence or a
controlled substance offense.” United States Sentencing Commission, Guidelines
Manual § 4B1.1(a). The Guidelines define a “controlled substance offense” as a
felony that involves “the manufacture, import, export, distribution, or dispensing of
a controlled substance (or a counterfeit substance) or the possession of a controlled
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substance (or a counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense.” Id. § 4B1.2(b).
In interpreting these provisions, we apply the usual rules of statutory
construction, beginning with the plain language of the guideline. United States v.
Shannon, 631 F.3d 1187, 1189 (11th Cir. 2011). In Shannon, therefore, we held
that a conviction for Florida cocaine trafficking involving only the purchase of
cocaine was not a “controlled substance offense” under § 4B1.2(b) because the
purchase of cocaine “does not necessarily give rise to actual or constructive
possession” of the drug under Florida law, and the act of purchasing cocaine is not
covered by the plain language of the guideline. Id. at 1188–90. We noted that a
violation of the same Florida drug trafficking statute that involved possession with
intent to distribute cocaine—rather than purchase with intent to distribute—would
meet the definition of a controlled substance offense. Id. at 1190 & n.3. Contrary
to Alexander’s argument, whether a prior state felony is a controlled substance
offense for purposes of the career-offender guideline depends on whether the state
offense meets the definition of that term in § 4B1.2(b)—not on the seriousness of
the offense or the severity of the penalty under state law. Cf. id. at 1190–91
(Marcus, J., specially concurring).
In United States v. Smith, we determined that a violation of § 893.13(1) of
the Florida Statutes—which provides that, with exceptions not relevant here, “a
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person may not sell, manufacture, or deliver, or possess with intent to sell,
manufacture, or deliver, a controlled substance”—squarely meets the definition of
a “controlled substance offense” under the Guidelines. 775 F.3d 1262, 1267 (11th
Cir. 2014). We specifically rejected the argument that because the Florida statute
does not require proof that the defendant knew that the substance was illegal, a
violation of § 893.13(1) should not qualify as a controlled substance offense. Id.;
see also Pridgeon, 853 F.3d at 1197–98. As we explained in Smith, no “element of
mens rea with respect to the illicit nature of the controlled substance is expressed
or implied by” the Guidelines definition of “controlled substance offense.” Smith,
775 F.3d at 1267. We are bound by this precedent. See, e.g., United States v.
Harris, 941 F.3d 1048, 1057 (11th Cir. 2019).
The district court appropriately applied the career-offender enhancement
when calculating Alexander’s Guidelines sentencing range because his Florida
felony convictions for sale of cocaine and possession of cocaine with intent to sell
qualify as controlled substance offenses under the Guidelines. We therefore affirm
Alexander’s conviction and sentence.
AFFIRMED.
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