[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11100 AUGUST 29, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 9:10-cr-80140-DMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
AGUSTIN NUNEZ,
a.k.a. Agustin Nunez-Cortez,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 29, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Agustin Nunez appeals his 48-month sentence, imposed after pleading
guilty to illegal re-entry after removal. On appeal, Nunez argues that the district
court erred when it included a 16-level enhancement for a 2006 offense for
trafficking cocaine under Fla. Stat. Ann. § 893.135. After a thorough review of
the record, we affirm.
I.
In 2010, Nunez pleaded guilty to illegal re-entry, in violation of 8 U.S.C.
1326(a) and (b)(2). Nunez had been removed from the United States on two other
occasions–in one instance after he was convicted of a felony in Florida for
trafficking 28 grams or more of cocaine. Nunez was assigned a criminal history
category of III and an offense level of 21, including a 16-level enhancement for
the drug offense, which placed him within the guidelines range of 46 to 57
months’ imprisonment.
Nunez objected to the enhancement, arguing that his 2006 conviction did
not qualify as a drug trafficking offense, under U.S.S.G. § 2L1.2(b)(1)(a)(i).
Nunez specifically argued that Fla. Stat. Ann. § 893.135 did not include the
requisite “intent to distribute” element required to qualify it as a “drug trafficking
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offense” under 2L1.2. The district court rejected this argument, without further
explanation, and sentenced Nunez to 48 months’ imprisonment and 3 years of
supervised release. Nunez appealed.
II.
We review de novo whether a defendant’s prior conviction qualifies as a
“drug trafficking offense” under § 2L1.2(b)(1)(A). United States v.
Madera-Madera, 333 F.3d 1228, 1231 n.2 (11th Cir. 2003). “Federal law, not
state law, controls the application of the Sentencing Guidelines.” Id.
III.
Nunez argues that the district court erred when it applied a 16-level
enhancement to his offense because his 2006 conviction does not qualify as a
“drug trafficking offense” under Fla. Stat. § 893.135. Specifically, he contends
that the Florida statute, despite its “trafficking” label, does not meet the federal
definition of “drug trafficking offense.” The government responds that Nunez’s
argument is foreclosed by United States v. Madera-Madera, 333 F.3d 1228 (11th
Cir. 2003).1 We agree.
1
Although Nunez cites to Fifth, Sixth, Ninth and Tenth Circuit decisions, Madera-
Madera remains binding precedent in this circuit, which we are bound to follow unless it is
overruled en banc or by the Supreme Court of the United States. United States v. Hogan, 986
F.3d 1364, 1369 (11th Cir. 1993).
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“The United States Code increases the authorized maximum penalty to 20
years’ imprisonment if the illegally reentering alien’s deportation followed an
‘aggravated felony’ conviction.” 8 U.S.C. § 1326(b)(2). A 16-level enhancement
is warranted if the alien has been previously deported after a felony drug
trafficking conviction for which the sentence imposed exceeded 13 months.
Madera-Madera, 333 F.3d at 1229.
For the purposes of this enhancement, the Guidelines define a drug
trafficking offense as “an offense under federal, state, or local law that prohibits
the manufacture, import, export, distribution, or dispensing of, or offer to sell 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, cmnt. (1(B)(iv)) (emphasis added).
The Florida statute under which Nunez was convicted provides that:
Any person who knowingly sells, purchases, manufactures, delivers, or
brings into this state, or who is knowingly in actual or constructive
possession of, 28 grams or more of cocaine . . . or of any mixture
containing cocaine, but less than 150 kilograms of cocaine or any such
mixture, commits a felony of the first degree, which felony shall be
known as “trafficking in cocaine.”
Fla. Stat. Ann. § 893.135(1)(b).
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Nunez argues that the district court erred because the “intent to distribute”
element present in the federal statue is absent from the Florida statute. In Madera-
Madera, this court addressed a similar argument, determining that a defendant
“must be in possession of a significant quantity of drugs before Georgia deems the
offense drug ‘trafficking.’” 333 F.3d at 1232 (emphasis in the original). Although
there is no specific “intent to distribute” in the Georgia statute, this court
concluded that “drug trafficking is a more serious offense than either simple
possession or possession with the intent to distribute” and, thus, the statute
“necessarily infers an intent to distribute once a defendant possesses a certain
amount of drugs.” Id.
Although a Georgia drug-trafficking statute was at issue above, in United
States v. James, 430 F.3d 1150, 1153-56 (11th Cir. 2005), we determined that a
defendant’s prior conviction “for trafficking in cocaine by possession of between
200 and 400 grams of cocaine,” in violation of Florida’s drug-trafficking statute
was a “serious drug offense” for purposes of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(A)(ii). We concluded that Florida’s three-tiered system was
“not materially distinguishable” from Georgia’s system, and, thus,
Madera-Madera dictated that James’s offense involved an intent to distribute
because “Florida’s drug trafficking statute necessarily [implies] an intent to
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distribute once a defendant possesses 28 grams or more [of cocaine].” James, 430
F.3d at 1155.
Here, Nunez’s objection to the 16-level enhancement to his base offense
level is foreclosed by Madera-Madera. The district court properly concluded that
Nunez’s 2006 conviction under § 893.135(1)(b) was a proper predicate for the
“drug trafficking” enhancement under § 2L1.2(b)(1)(A)(i), despite the absence of
a separate “intent to distribute” clause in the Florida statute, because Nunez
possessed a quantity of cocaine from which an intent to distribute could be
inferred. Accordingly, we affirm.
AFFIRMED.
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