USCA11 Case: 20-10307 Date Filed: 01/13/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10307
Non-Argument Calendar
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D.C. Docket No. 3:19-cr-00099-RV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLESTON PIERRE WIGGINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 13, 2021)
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Before WILSON, MARTIN, and BRANCH, Circuit Judges.
PER CURIAM:
Charleston Wiggins appeals his 76-month sentence that was imposed after
he was convicted for being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2).
On appeal, Wiggins argues that the district court erred in relying on United
States v. Smith, 775 F.3d 1262 (11th Cir. 2014), to find that his conviction under
Fla. Stat. § 893.13 qualified as a controlled substance offense under the Sentencing
Guidelines. Wiggins claims that the Supreme Court’s decision in Shular v. United
States, 140 S. Ct. 779 (2020), abrogated our holding in Smith. Additionally,
Wiggins claims that Fla. Stat. § 893.13 is broader than the Guidelines’ definition of
a controlled substance offense because it does not include a mens rea requirement
as to the illicit nature of the controlled substance and it applies to both attempted
and fully completed controlled substance crimes.
I.
We review de novo whether a prior conviction qualifies as a controlled
substance offense under the Sentencing Guidelines. United States v. Bishop, 940
F.3d 1242, 1253 (11th Cir. 2019), cert. denied, 140 S. Ct. 1274 (2020).
The Guidelines provide that a base offense level of 20 applies to a defendant
who commits any part of a firearms offense after “sustaining one felony conviction
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of either a crime of violence or a controlled substance offense.” U.S.S.G.
§ 2K2.1(a)(4)(A). A “controlled substance offense” is an 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.” Id. § 4B1.2(b). The
commentary to § 4B1.2 states that an attempt to commit a controlled substance
offense is a qualifying predicate offense. Id. § 4B1.2, cmt. 1. This commentary is
a binding interpretation of the term “controlled substance offense.” United States
v. Lange, 862 F.3d 1290, 1294 (11th Cir. 2017).
In Smith, we held that Fla. Stat. § 893.13 is categorically a “controlled
substance offense” under § 4B1.2(b) and a “serious drug offense” under the Armed
Career Criminals Act (ACCA), 18 U.S.C. § 924(e)(2)(A)(ii). 775 F.3d at 1268. In
relevant part, Fla. Stat. § 893.13 provides that a person “may not sell, manufacture,
or deliver, or possess with intent to sell, manufacture, or deliver, a controlled
substance.” Fla. Stat. § 893.13(1)(a). We found in Smith that neither the definition
of “serious drug offense” under the ACCA nor “controlled substance offense”
under the Guidelines require “that a predicate state offense include an element of
mens rea with respect to the illicit nature of the controlled substance.” 775 F.3d at
1268; see also United States v. Pridgeon, 853 F.3d 1192, 1200 (11th Cir. 2017)
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(rejecting the argument that Smith was wrongly decided because Fla. Stat. § 893.13
does not include a mens rea element as to the illicit nature of the controlled
substance); Bishop, 940 F.3d at 1254 (same).
In Shular, the Supreme Court affirmed the Eleventh Circuit’s holding that
Fla. Stat. § 893.13 qualifies as a “serious drug offense” under the ACCA. 140 S.
Ct. at 782. In that case, Eddie Shular appealed his sentence, arguing that the
district court erred in determining that his prior conviction under Fla. Stat. §
893.13 qualified as a predicate ACCA felony. Id. Shular claimed that Smith was
wrongly decided and that “the court must first identify the elements of the
‘generic’ offense [named in the ACCA], then ask whether the elements of the state
offense match those of the generic crime.” Id. And similar to Wiggins’ argument
in this case, Shular said that because Fla. Stat. § 893.13 did not include a mens rea
requirement it did “not match the generic offenses in” the ACCA. Id. The
Eleventh Circuit relied on Smith and the prior precedent rule to affirm the district
court’s sentence. On appeal, the Supreme Court ultimately affirmed, finding that
the ACCA “‘serious drug offense’ definition requires only that the state offense
involve the conduct specified in the federal statute; it does not require that the state
offense match certain generic offenses.” Id.
“Under the prior precedent rule, we are bound to follow a prior binding
precedent unless and until it is overruled by this court en banc or by the Supreme
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Court.” United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012)
(per curiam). “To constitute an ‘overruling’ for the purposes of the prior panel
precedent rule, a Supreme Court decision ‘must be clearly on point.’” United
States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). Additionally, the Supreme
Court decision must “actually abrogate or directly conflict with, as opposed to
merely weaken, the holding of the prior panel.” Id.
II.
The district court did not err in sentencing Wiggins. First, Shular did not
overrule or abrogate our holding in Smith. 140 S. Ct. at 782. In fact, the Court
affirmed our decision, which we based on Smith.1 Because Smith has not been
abrogated, we are bound to hold that Fla. Stat. § 893.13 is a controlled substance
offense under U.S.S.G. § 4B1.2(b). See Romo-Villalobos, 674 F.3d at 1251.
Second, we are bound by the commentary to § 4B1.2, which says that an attempt to
commit a controlled substance offense qualifies as a predicate felony under the
Guidelines. See Lange, 862 F.3d at 1294. Accordingly, we affirm Wiggins’ 76-
month sentence under 18 U.S.C. §§ 922(g)(1), 924(a)(2).
AFFIRMED.
1
While the Supreme Court did not rely on Smith in its own analysis, it recognized that we relied
on Smith in affirming Shular’s sentence. Id. at 784.
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