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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13893
Non-Argument Calendar
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D.C. Docket No. 9:19-cr-80087-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRELL DONTE CURRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 4, 2020)
Before JILL PRYOR, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
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Tyrell Curry appeals his 180-month sentence of imprisonment for possession
of a firearm and ammunition as a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Curry asserts that the district court improperly classified
him as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), based on its conclusion that Curry’s prior Florida drug convictions under
Fla. Stat. § 893.13 qualified as “serious drug offense[s].” Specifically, Curry
argues that his convictions didn’t qualify because convictions under Chapter 893 of
the Florida Statutes lack a mens rea requirement with respect to the substances’
illicit nature, as required by generic drug offenses. After careful review, we
affirm.1
The ACCA mandates a 15-year minimum sentence for a defendant
convicted of possession of a firearm as a convicted felon who has at least three
convictions for a “serious drug offense” or “violent felony.” 18 U.S.C.
§ 924(e)(1). A “serious drug offense” is defined, in relevant part, as an offense
under state law, punishable by at least ten years of imprisonment, “involving
manufacturing, distributing, or possessing with intent to manufacture or distribute,
a controlled substance.” Id. § 924(e)(2).
1
We review de novo whether a conviction qualifies as a serious drug offense under the ACCA.
United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016).
2
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In United States v. Smith, we held that a prior conviction under Fla. Stat.
§ 893.13 is a “serious drug offense” under the ACCA and a “controlled substance
offense” under U.S.S.G. § 4B1.2(b). 775 F.3d 1262, 1268 (11th Cir. 2014). We
concluded that we needn’t look to the generic definitions of “serious drug offense”
and “controlled substance offense” because those terms were defined and “[n]o
element of mens rea with respect to the illicit nature of the controlled substance is
expressed or implied by either definition.” Id. at 1267. We also rejected the
argument that the presumption in favor of mental culpability and the rule of lenity
required us to imply an element of the federal definitions because neither definition
was ambiguous. Id. Three years later, in United States v. Pridgeon, we rejected
the argument that Smith was wrongly decided on the ground that a conviction
under § 893.13 doesn’t include a mens rea element as to the illicit nature of the
controlled substance and affirmed Smith’s holding that convictions under § 893.13
qualify as “controlled substance offense[s].” 853 F.3d 1192, 1200 (11th Cir.
2017).
Following our decision in Smith, the Supreme Court held in Elonis v. United
States that 18 U.S.C. § 875(c), which proscribes certain threats, required that the
defendant be aware of the threatening nature of the communication. 135 S. Ct.
2001, 2004, 2012 (2015). The Supreme Court stated that, when interpreting
federal criminal statutes that are silent on the required mental state, it reads into the
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statute “only that mens rea which is necessary to separate wrongful conduct from
otherwise innocent conduct.” Id. at 2010 (quotation marks omitted).
Then, in McFadden v. United States, the Supreme Court held that the
government must prove that a defendant knew he was dealing with a controlled
substance to convict him in prosecutions involving a controlled substance
analogue, such as bath salts. 576 U.S. 186, 188–89 (2015). The Court stated that
the government can meet the knowledge requirement by showing that the
defendant possessed an analogue substance with knowledge of its features as
explained in the Controlled Substances Act—e.g., having a stimulant, depressant,
or hallucinogenic effect. Id. at 194–95. The Supreme Court explained that a
“defendant who possesses a substance with knowledge of those features knows all
of the facts that make his conduct illegal, just as a defendant who knows he
possesses heroin knows all of the facts that make his conduct illegal.” Id.
Finally, in Shular v. United States, the Supreme Court affirmed a decision of
this Court applying Smith to conclude that a prior drug conviction under Fla. Stat.
§ 893.13 qualified as a “serious drug offense” within the meaning of the ACCA.
140 S. Ct. 779, 782–84 (2020). The petitioner there argued that a court should
look to the elements of the generic offenses listed in the “serious drug offense”
definition and that those generic offenses include a mens rea element of knowledge
that the substance was illicit. Id. at 782. But the Supreme Court held that a court
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determining whether a predicate offense qualifies as a serious drug offense need
only consider whether the predicate offense’s elements necessarily entail the types
of conduct identified in the ACCA definition, rather than engage in a “generic-
offense matching exercise.” Id. at 784 (quotation marks omitted). The Supreme
Court also noted that the petitioner overstated Florida’s disregard for mens rea in
§ 893.13 because “a defendant unaware of the substance’s illicit nature can raise
that unawareness as an affirmative defense, in which case the standard jury
instructions require a finding of knowledge beyond a reasonable doubt.” Id. at
787.
Under the prior-panel-precedent rule, an earlier panel’s holding is binding on
all subsequent panels unless the Supreme Court or this Court sitting en banc
overrules it. United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011). “To
constitute an overruling for the purposes of this prior panel precedent rule, the
Supreme Court decision must be clearly on point.” United States v. Kaley, 579
F.3d 1246, 1255 (11th Cir. 2009) (quotation marks omitted). Additionally, it must
“actually abrogate or directly conflict with, as opposed to merely weaken, the
holding of the prior panel.” Id.
Here, the district court did not err in classifying Curry’s prior drug
convictions under Fla. Stat. § 893.13 as “serious drug offenses” for ACCA
purposes. Curry’s argument that his prior Chapter 893 convictions are not serious
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drug offenses because the state law lacked a mens rea element is foreclosed by this
Court’s decision in Smith. See Smith, 775 F.3d at 1267; Jordan, 635 F.3d at 1189.
Curry’s assertion that Shular didn’t address whether the career-offender guideline
requires a predicate offense to have an element of mens rea regarding the illicit
nature of the controlled substance is irrelevant because Shular would have had to
abrogate or directly conflict with Smith for this Court not to apply the prior-panel-
precedent rule. See Kaley, 579 F.3d at 1255.
Additionally, Curry has not shown that Elonis or McFadden overruled or
abrogated Smith because neither decision is clearly on point. Elonis and
McFadden both concerned the mens rea required to convict a defendant under
certain statutes and didn’t address the interpretation of “serious drug offense” in
the context of a sentencing enhancement or whether its definition included a mens
rea requirement. See Elonis, 135 S. Ct. at 2010; McFadden, 576 U.S. at 188.
Accordingly, the district court didn’t err in classifying Curry’s prior drug
convictions under Fla. Stat. § 893.13 as serious drug offenses because Curry’s
argument is foreclosed by Smith, which was not overruled or abrogated by Shular,
Elonis, or McFadden.
AFFIRMED.
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