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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12791
Non-Argument Calendar
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D.C. Docket No. 6:19-cr-00046-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MORRIS DEWAYNE CARROLL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 7, 2021)
Before JILL PRYOR, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
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Morris Carroll appeals his 108-month sentence for possessing a firearm as a
convicted felon. He argues that the district court erred in relying on United States
v. Smith, 775 F.3d 1262 (11th Cir. 2014), to find that his prior felony drug
conviction under Fla. Stat. § 893.13 qualifies as a “controlled substance offense”
under U.S.S.G. § 4B1.2(b) because, he argues, § 893.13 required no mens rea with
respect to the illicit nature of the substance.
We ordinarily review de novo whether a prior conviction qualifies as a
controlled substance offense under the Sentencing Guidelines. United States v.
Bates, 960 F.3d 1278, 1293 (11th Cir. 2020). But when an issue is raised for the
first time on appeal, we review for plain error. United States v. Lange, 862 F.3d
1290, 1293 (11th Cir. 2017).
Section 2K2.1(a)(2) of the U.S. Sentencing Guidelines is used to calculate
the base offense level for a defendant convicted of the unlawful possession of a
firearm “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 commentary explains
that a “controlled substance offense” is defined as “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
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manufacture, import, export, distribute, or dispense.” U.S.S.G. §§ 2K2.1,
comment. (n.1), 4B1.2(b).
In Smith, we held that offenses under Fla. Stat. § 893.13(1) are categorically
controlled substance offenses under the Guidelines, concluding that no element of
mens rea with respect to the illicit nature of the controlled substance was required
by U.S.S.G. § 4B1.2(b)’s definition of a “controlled substance offense.” 775 F.3d
at 1267–68. In subsequent cases, we repeatedly upheld Smith in determining that a
prior conviction under Fla. Stat. § 893.13 is a controlled substance offense under
the Sentencing Guidelines. Id.; see United States v. Bishop, 940 F.3d 1242, 1253–
54 (11th Cir. 2019); United States v. Pridgeon, 853 F.3d 1192, 1198–1200 (11th
Cir. 2017).
In Shular, the Supreme Court clarified that a court deciding whether a state
offense fits the Armed Career Criminal Act’s (ACCA) 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” one of the types of
conduct identified in § 924(e)(2)(A)(ii). Shular v. United States, 140 S. Ct. 779,
784–85 (2020). The Shular Court affirmed an unpublished decision of this Court
that relied on Smith’s holding that offenses under Fla. Stat. § 893.13(1) constitute
serious drug offenses under the ACCA. Id. at 784. Nevertheless, the Supreme
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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 the Court’s decision in Shular,
however, we clarified that Shular’s reasoning and holding are consistent with this
Court’s precedent and reaffirmed our decision in Smith, holding once again that
convictions under Fla. Stat. § 893.13 constitute serious drug offenses as defined in
the ACCA. United States v. Smith, 983 F.3d 1213, 1223 (11th Cir. 2020).
Under the prior panel precedent rule, a prior panel’s holding is binding on all
subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this Court sitting en banc. United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
Here, the district court did not err in determining Carroll’s base offense level
because our binding precedent in Smith forecloses his argument that his prior
conviction under Fla. Stat. § 893.13 is not a controlled substance offense because it
lacks a mens rea requirement as to the illicit nature of the controlled substance.
Therefore, the district court properly applied an enhanced base offense level based,
in part, on Carroll’s prior conviction for a controlled substance offense.
AFFIRMED.
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United States v. Morris Dewayne Carroll
Combined Opinion