[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 25, 2006
No. 05-13437
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00588-CR-1-WBH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WITHROW WILSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 25, 2006)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Withrow Wilson appeals his sentence for possessing a firearm and
ammunition, after previously having been convicted of state and federal offenses
punishable by imprisonment for a term exceeding one year, in violation of 18
U.S.C. §§ 922(g) and 924(a)(2). Wilson asserts the district court erred in
concluding his 1985 Georgia state conviction for trafficking in cocaine was a
“controlled substance offense.” The district court did not err, and we affirm.
“We review a district court’s application and interpretation of the sentencing
guidelines de novo.” United States v. Murphy, 306 F.3d 1087, 1089 (11th Cir.
2002). Section 2K2.1(a)(2) provides for a base offense level of 24 “if the
defendant committed any part of the instant offense subsequent to sustaining at
least two felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 2K2.1(a)(2). The phrase “controlled substance offense” has
the meaning given that term in § 4B1.2(b) and application note 1 of the
commentary to § 4B1.2(b). U.S.S.G. § 2K2.1(a)(2), comment (n.1). Section
4B1.2(b) provides:
The term “controlled substance offense” means an offense under
federal or state law, punishable by a term of imprisonment of more
than one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or
dispense.
U.S.S.G. § 4B1.2(b). Georgia Code § 16-13-31(a)(1) provides: “Any person who
knowingly sells, manufactures, delivers, or brings into this state or who is
knowingly in possession of 28 grams or more of cocaine . . . commits the felony
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offense of trafficking in cocaine . . . .” O.C.G.A. § 16-13-31(a)(1).
In United States v. Madera-Madera, 333 F.3d 1228, 1229-30 (11th Cir.
2003), we considered whether the defendant’s prior drug conviction, under
O.C.G.A. § 16-13-31(e), for possession of 87 grams of methamphetamine,
constituted a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i).1
There, we examined Georgia’s three-tiered statutory scheme for punishing drug
crimes and determined that, under O.C.G.A. § 16-13-31, Georgia considers
possession of 28 grams or more of methamphetamine “trafficking,” and “drug
trafficking . . . is a more serious offense than either simple possession or
possession with intent to distribute.” Id. at 1231-32. We found, “[i]n making
possession of 28 grams of methamphetamine a ‘trafficking’ offense, Georgia’s
trafficking statute necessarily infers an intent to distribute once a defendant
possesses a certain amount of drugs.” Id. at 1232. We also rejected the
defendant’s argument that § 2L1.2’s definition of “drug trafficking offense”
requires the statutory element of intent to distribute be actually present in the
language of the statute of conviction, finding the Sentencing Commission decided
1
The phrase “drug trafficking offense” means “an offense under federal, state, or local law
that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2, comment (n.
1(B)(iv)).
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not to define a “drug trafficking offense” by its elements. Id. at 1232-34.
Although we considered whether the defendant’s prior conviction was a
“drug trafficking offense” rather than a “controlled substance offense” in Madera-
Madera, the Guidelines definition of “drug trafficking offense” is virtually
identical to its definition of “controlled substance offense.” See U.S.S.G.
§§ 2L1.2, comment (n. 1(B)(iv)); 4B1.2(b). Because we are bound by our prior
holding in Madera-Madera that a federal court may infer that a conviction under
O.C.G.A. § 16-13-31 includes an intent to distribute, the district court did not err in
finding that Wilson’s 1985 state conviction for trafficking in cocaine was a
controlled substance offense.
AFFIRMED.
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