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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10580
Non-Argument Calendar
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D.C. Docket No. 9:18-cr-80208-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY HORACE GIVINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 5, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and TJOFLAT, Circuit Judges.
PER CURIAM:
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Henry Givins appeals his 120-month sentence for possession with intent to
distribute cocaine and fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
He argues that the District Court erred in sentencing him as a career offender under
§ 4B1.1(a) of the U.S. Sentencing Guidelines based on his two Florida convictions
for sale of cocaine and his Florida conviction for possession of cocaine with intent
to sell. He claims that these offenses do not qualify as predicate “controlled
substance offense[s]” within the meaning of U.S.S.G. § 4B1.2(b) because Florida
law does not contain a mens rea element regarding the illicit nature of the
controlled substance.
We review de novo a district court’s interpretation and application of the
Sentencing Guidelines, including its decision to classify a defendant as a career
offender under U.S.S.G. § 4B1.1. United States v. Gibson, 434 F.3d 1234, 1243
(11th Cir. 2006). We also review de novo whether a defendant’s prior conviction
qualifies as a “controlled substance offense” under the Sentencing Guidelines.
United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017). We must follow a
prior binding precedent unless and until it is overruled by this Court sitting en banc
or the Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th
Cir. 2008).
Section 4B1.1 of the Sentencing Guidelines provides that a defendant is a
career offender if he was at least eighteen years old when he committed the instant
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offense of conviction, the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense, and the defendant 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). It defines a “controlled substance
offense” as an offense under federal or state law that is punishable by a term of
imprisonment greater than one year and that prohibits, among other things, the
distribution of a controlled substance or the possession of a controlled substance
with intent to distribute. Id. § 4B1.2(b).
In United States v. Smith, we rejected the argument that an offense under
Fla. Stat. § 893.13(1) for possession of a controlled substance with intent to sell
was not a “controlled substance offense” within the meaning of U.S.S.G.
§ 4B1.2(b) because it lacked a mens rea element and therefore did not meet the
generic definition of a controlled substance offense. 775 F.3d 1262, 1267 (11th
Cir. 2014). We reasoned that it was unnecessary to look for the elements of a
generic definition of a “controlled substance offense” because that term is defined
in the Guidelines, and the Guidelines definition does not require, either explicitly
or implicitly, that a predicate state offense include an element of mens rea with
respect to the illicit nature of the controlled substance. Id. at 1267–68. The
Guidelines definition merely requires that the predicate offense “prohibit[]” certain
conduct relating to controlled substances, including, among other things, the
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possession of a controlled substance with the intent to distribute. Id. at 1267.
Since Fla. Stat. § 893.13(1) prohibited that conduct, we concluded that Fla. Stat.
§ 893.13(1) was a controlled substance offense under § 4B1.2(b). Id. at 1267–68.
Givins acknowledges that his argument—that his Florida drug offenses do
not qualify as predicate offenses because of the lack of a mens rea element
regarding the illicit nature of the substance—is foreclosed by our precedent in
Smith. Based on our binding precedent in Smith, the District Court did not err in
sentencing Givins as a career offender because his Florida drug offenses qualify as
“controlled substance offense[s]” under U.S.S.G. § 4B1.2(b). Accordingly, we
affirm.
AFFIRMED.
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