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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13805
Non-Argument Calendar
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D.C. Docket No. 8:18-cr-00457-WFJ-AAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES ANTHONY TIGGETT,
a.k.a. James McGowan,
a.k.a. James McGowen,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 28, 2021)
Before WILSON, ROSENBAUM, and LAGOA, Circuit Judges.
PER CURIAM:
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Charles Anthony Tiggett appeals his 180-month sentence for being a felon in
possession of a firearm. Tiggett argues that the district court erred in concluding
that his prior felony drug convictions under Fla. Stat. § 893.13 constituted serious
drug offenses under the Armed Career Criminal Act (“ACCA”) and controlled
substance offenses under the Sentencing Guidelines. Because our precedent
forecloses Tiggett’s argument, we affirm his sentence.
We review de novo a district court’s determination that a prior conviction
constitutes a serious drug offense under the ACCA. United States v. White, 837 F.3d
1225, 1228 (11th Cir. 2016). We also normally review de novo the district court’s
interpretation and application of the Sentencing Guidelines. United States v. Gibson,
434 F.3d 1234, 1243 (11th Cir. 2006). However, where a defendant raises an issue
for the first time on appeal, we will review the issue only for plain error. United
States v. Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012). “Plain error occurs where
(1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s
substantial rights in that it was . . . not harmless; and (4) that seriously affects the
fairness, integrity or public reputation of the judicial proceedings.” Id. (quotation
marks omitted).
In United States v. Smith (“Smith I”), 775 F.3d 1262, 1268 (11th Cir. 2014),
we held that offenses under Fla. Stat. § 893.13(1) are both categorically serious drug
offenses under the ACCA and controlled substance offenses under the Guidelines.
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Neither definition, we said, “requires that a predicate state offense include[] an
element of mens rea with respect to the illicit nature of the controlled substance.”
Id. Moreover, we specifically rejected the arguments that the presumption in favor
of scienter requirements and the rule of lenity apply, because the statutory definitions
are unambiguous. Id. at 1267; see also United States v. Pridgeon, 853 F.3d 1192,
1198 (11th Cir. 2017) (reaffirming Smith I).
In Shular v. United States, 140 S. Ct. 779, 785 (2020), the Supreme Court
clarified that a court deciding whether a state offense fits the ACCA’s definition of
a serious drug offense should do so not by comparing the elements of the state
offense to those of a generic offense of the kind identified in § 924(e)(2)(A)(ii), but
by asking whether the elements of the state offense “necessarily entail” the type of
conduct identified in § 924(e)(2)(A)(ii). The Supreme Court affirmed an
unpublished decision of this Court which relied on Smith I’s holding that offenses
under Fla. Stat. 893.13(1) constitute serious drug offenses under the ACCA. Id. at
784. However, the Supreme Court expressly reserved the question whether, even
under its analysis, the ACCA requires that a serious drug offense include an element
of knowledge of the illicit status of the drug. Id. at 787 n.3.
Shortly after Shular, we clarified that the reasoning and holding of Shular are
consistent with our precedent. United States v. Smith, 983 F.3d 1213, 1223 (11th
Cir. 2020) (“Smith II”). Accordingly, we reaffirmed our decision in Smith I and held
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once again that convictions under Fla. Stat. § 893.13(1) constitute serious drug
offenses as defined in the ACCA. 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 Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236
(11th Cir. 2008).
Here, whether reviewed de novo or for plain error, Tiggett has failed to show
that the district court erred in sentencing him because, as Tiggett concedes, his
arguments are squarely foreclosed by our precedent in Smith I (holding that
convictions under Fla. Stat. § 893.13(1) are both serious drug offenses under the
ACCA and controlled substance offenses under the Guidelines); see also Smith II,
983 F.3d at 1223; Pridgeon, 853 F.3d at 1197-98. Accordingly, we affirm Tiggett’s
sentence.
AFFIRMED.
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