[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
February 5, 2004
No. 02-16095 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-00009-CR-HL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES EVANS,
Defendant-Appellant.
___________________
Appeal from the United States District Court for the
Middle District of Georgia
____________________
(February 5, 2004)
Before EDMONDSON, Chief Judge, BIRCH and FARRIS*, Circuit Judges.
FARRIS, Circuit Judge:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
Evans contends that his conviction is not a controlled substance offense
because it involved the delivery of chalk rather than cocaine. Prior circuit
authority has considered and answered the precise questions raised by his appeal.
There is no dispute that Evans pleaded guilty to an offense covered by the
controlled substance statute, 21 U.S.C. §§841(a)(1) and 846.
Under U.S.S.G. § 4B1.1(a)(2), we look only to the elements of the crime of
conviction and not the conduct underlying the crime. United States v. Lipsey, 40
F.3d 1200, 1201 (11th Cir. 1994); See also United States v. Frazier, 89 F.3d 1501
(11th Cir. 1996). A conviction for attempt required proof only that Evans
possessed the mens rea required for the underlying crime and took a substantial
step toward the commission of that crime. United States v. Carothers, 121 F.3d
659, 661 (11th Cir. 1997).
A defendant is a “career offender” if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense; (2) the instant
offense of conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony convictions
of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1.
These requirements were met here.
AFFIRMED.
2