Case: 18-10011 Date Filed: 07/23/2020 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10011
Non-Argument Calendar
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D.C. Docket No. 8:17-cr-00138-VMC-AAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRINCE GEORGE KELLY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 23, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and ED CARNES, Circuit
Judges.
PER CURIAM:
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Prince George Kelly pleaded guilty to one count of possessing ammunition
as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing the
district court found that Kelly had past convictions for a “crime of violence” and a
“controlled substance offense,” which resulted in a base offense level of 24 under
U.S.S.G. § 2K2.1(a)(2). After applying a three-level downward adjustment for
acceptance of responsibility, the district court found that Kelly’s total offense level
was 21 and his criminal history category was V. As a result, Kelly’s advisory
guidelines range was 70 to 87 months in prison. The court sentenced him to 70
months in prison, the bottom of the guidelines range.
On appeal Kelly contends for the first time that his 2006 Florida conviction
for possessing cocaine with intent to sell or deliver it, in violation of Fla. Stat.
§ 893.13(1), does not qualify as a controlled substance offense as defined in
U.S.S.G. § 4B1.2(2).1 He argues that because knowledge of the nature of the
controlled substance he possessed is not an element of his Florida drug offense,
that offense does not meet the guidelines’ definition of a controlled substance
offense. Because he failed to raise this issue in the district court, our review is
only for plain error. United States v. Joyner, 899 F.3d 1199, 1207 (11th Cir.
2018).
1
Section 2K2.1 borrows the definition of “controlled substance offense” from
§ 4B1.2(2). See § 2K2.1 cmt. n.1.
2
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The district court did not err at all, let alone plainly err. We have held in a
published decision that a conviction for possession with intent to distribute under
§ 893.13(1) is a controlled substance offense for purposes of § 4B1.2(2). See
United States v. Smith, 775 F.3d 1262, 1266–68 (11th Cir. 2014). In reaching that
holding, we rejected an argument identical to Kelly’s — that the lack of a
knowledge element in § 893.13(1) means it does not fit within the guidelines’
definition of a controlled substance offense. Id. We are bound by Smith until
either the United States Supreme Court or this Court sitting en banc holds
otherwise. See United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998)
(en banc). 2
AFFIRMED.
2
At Kelly’s request, we held this case in abeyance until the Supreme Court issued its
decision in Shular v. United States, 140 S. Ct. 779 (2020). In Shular the Court affirmed our
decision, based on Smith, that a defendant’s conviction under § 893.13(1) was a “serious drug
offense” under 18 U.S.C. § 924(e)(2)(A)(ii). See id. at 787; United States v. Shular, 736 F.
App’x 876, 876–77 (11th Cir. 2018). Nothing about the Court’s decision in Shular calls into
question our holding in Smith that a § 893.13(1) offense is a controlled substance offense under
the guidelines.
3