USCA11 Case: 22-10028 Document: 47-1 Date Filed: 01/17/2024 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10028
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ALEXANDER SMITH, III,
a.k.a. Squirrel,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:21-cr-00005-AW-GRJ-1
USCA11 Case: 22-10028 Document: 47-1 Date Filed: 01/17/2024 Page: 2 of 7
2 Opinion of the Court 22-10028
____________________
Before BRANCH, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
James Alexander Smith, III, argues for the first time on
appeal that the district court plainly erred in sentencing him as an
armed career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). Specifically, he argues that (1) his
prior Florida conviction for aggravated assault with a deadly
weapon does not categorically constitute a violent felony for
purposes of the ACCA because it can be committed by “reckless”
conduct; and (2) his prior Florida conviction for sale of cocaine is
not categorically a serious drug offense for purposes of the ACCA
because it does not necessarily involve the conduct of distribution
because it encompasses the mere “attempt” to distribute a
controlled substance. Because both of Smith’s claims are
foreclosed by binding precedent, we affirm.
I. Background
In 2021, Smith pleaded guilty to possession with intent to
distribute more than 50 grams of methamphetamine (Count One),
possession of a firearm during a drug-trafficking crime (Count
Two), and possession of a firearm by a convicted felon (Count
Three). 1 At sentencing, the district court determined that Smith
1 The ACCA mandates a minimum term of imprisonment of 15 years for “a
person who violates section 922(g) . . . and has three previous convictions . . .
for a violent felony or a serious drug offense, or both, committed on occasions
USCA11 Case: 22-10028 Document: 47-1 Date Filed: 01/17/2024 Page: 3 of 7
22-10028 Opinion of the Court 3
qualified as an armed career criminal because he had three prior
convictions for a violent felony or a serious drug offense. 2 Smith
did not object. The district court sentenced Smith to a total of 240
months’ imprisonment to be followed by 10 years’ supervised
release. 3 This appeal followed.
different from one another.” 18 U.S.C. § 924(e)(1) (emphasis added). Possession
of a firearm by a convicted felon is a § 922(g) offense. See 18 U.S.C. § 922(g)(1).
At the time of Smith’s offense, without the ACCA enhancement, a violation
of § 922(g) carried a statutory maximum of only 10 years’ imprisonment. Id.
§ 924(a)(2) (2018). Notably, in 2022, Congress amended § 924 and a violation
of § 922(g) without the ACCA enhancement now carries a statutory maximum
of 15 years’ imprisonment. Id. § 924(a)(8) (2022).
2 Smith’s presentence investigation report identified the following prior
Florida convictions as supporting the ACCA enhancement: (1) possession of a
controlled substance with intent to sell and sale of a controlled substance;
(2) aggravated assault with a deadly weapon; (3) possession of cocaine (one
conviction in 2002 and one in 2006); (4) possession of a controlled substance
(one conviction in 2005 and one in 2018); and (5) sale of cocaine. At
sentencing, the district court indicated that a number of these convictions did
not qualify as ACCA predicates, but it did not specify which ones.
Nevertheless, the district court determined that at least three of the listed
convictions qualified as ACCA predicates, although it did not indicate on
which offenses it relied. Smith did not object to either the PSI or the district
court’s ACCA determination.
3 Specifically, the district court sentenced Smith to concurrent terms of 180
months’ imprisonment on Counts I and III—the statutory mandatory
minimum—and a consecutive term of 60 months’ imprisonment on Count
II—also the statutory mandatory minimum. See 18 U.S.C. §§ 924(c)(1)(A)(i),
924(e)(1).
USCA11 Case: 22-10028 Document: 47-1 Date Filed: 01/17/2024 Page: 4 of 7
4 Opinion of the Court 22-10028
II. Discussion
Smith argues for the first time on appeal that the district
court erred in imposing an enhanced sentence under the ACCA
because he did not have three qualifying convictions. 4 He contends
that his prior Florida conviction for aggravated assault with a
deadly weapon does not categorically qualify as a violent felony
and that his prior Florida conviction for sale of cocaine does not
categorically qualify as a serious drug offense. Both of his
challenges are foreclosed by binding precedent.
With regard to his conviction for Florida aggravated assault
with a deadly weapon, Smith argues that it does not categorically
qualify as a violent felony because it can be committed with a mens
rea of recklessness, and in Borden v. United States, 141 S. Ct. 1817,
1821–22 (2021), the Supreme Court held that offenses with a mens
rea of recklessness do not qualify as violent felonies for purposes of
the ACCA’s elements clause. However, while Smith’s appeal was
pending in this Court, we rejected a virtually identical Borden-based
challenge in Somers v. United States and held that “aggravated
4 Because Smith failed to challenge the ACCA enhancement below, we review
this claim for plain error only. United States v. McKinley, 732 F.3d 1291, 1295
(11th Cir. 2013). Under this stringent standard, “there must be (1) error,
(2) that is plain, and (3) that affects substantial rights. If all three conditions are
met, we may then exercise our discretion to correct the error, but only if
(4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 1296 (quotations and internal citation omitted).
For an error to be plain, it must be “contrary to explicit statutory provisions
or to on-point precedent in this Court or the Supreme Court.” United States v.
Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (quotation omitted).
USCA11 Case: 22-10028 Document: 47-1 Date Filed: 01/17/2024 Page: 5 of 7
22-10028 Opinion of the Court 5
assault under Florida law categorically qualifies as a ‘violent felony’
under the ACCA’s element clause.” 66 F.4th 890, 894–96 (11th Cir.
2023); see also Turner v. Warden Coleman FCI (Medium), 709 F.3d
1328, 1341 (11th Cir. 2013) (holding pre-Borden that a Florida
aggravated assault conviction categorically qualified as a violent
felony under the ACCA). We are bound by our decision in Somers,
and it squarely forecloses Smith’s claim. 5 See United States v. Archer,
5 Smith points to prior decisions from Florida’s intermediate appellate courts,
which he argues demonstrates that, at the time of his aggravated assault
conviction, Florida courts had construed the crime of aggravated assault to
encompass reckless conduct. However, our decision in Somers was premised
on the Florida Supreme Court’s response to a certified question concerning
the necessary mens rea required for an aggravated assault conviction under
Florida law. Somers, 66 F.4th at 893. As we explained in Somers, in response to
the certified questions, “[t]he Florida Supreme Court . . . told us
unambiguously that assault under Florida law requires a mens rea of at least
knowing conduct; it cannot be committed recklessly. [And] [w]hen the
Florida Supreme Court . . . interprets [a] statute, it tells us what that statute
always meant.” Id. at 896 (quotation omitted). Thus, like Somers, Smith
“cannot rely on earlier decisions of Florida’s intermediate courts of appeal to
avoid [the Florida Supreme Court’s] clear holding” to the contrary. Id.
To the extent Smith argues that the Florida Supreme Court essentially
got the law wrong in response to the certified question, his arguments are
unavailing as we are bound by the Florida Supreme Court’s interpretation of
Florida law. See Johnson v. United States, 559 U.S. 133, 138 (2010) (explaining in
the context of an ACCA challenge that “we are . . . bound by the Florida
Supreme Court’s interpretation of state law, including its determination of the
elements” of a particular state offense); United States v. Hill, 799 F.3d 1318, 1322
(11th Cir. 2015) (“[F]ederal courts are bound by a state supreme court’s
interpretation of state law, including its determination of the elements of the
underlying state offense.”).
USCA11 Case: 22-10028 Document: 47-1 Date Filed: 01/17/2024 Page: 6 of 7
6 Opinion of the Court 22-10028
531 F.3d 1347, 1352 (11th Cir. 2008) (explaining that under our
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”).
Turning to Smith’s conviction for sale of cocaine in violation
of Fla. Stat. § 893.13(1)(a), he argues that it does not categorically
qualify as a serious drug offense because it includes the mere
attempted transfer of cocaine, and, therefore criminalizes a broader
range of conduct than that embodied in the ACCA’s definition of a
serious drug offense. 6 As with his first claim, while Smith’s appeal
was pending in this Court, we rejected an identical challenge in
United States v. Penn and held that Florida convictions for sale of
cocaine categorically qualify as serious drug offenses for purposes
of the ACCA. 63 F.4th 1305, 1310–17 (11th Cir. 2023). In so
holding, we rejected the identical arguments that Smith makes
here. 7 See id. at 1316–17. We are bound by our decision in Penn,
6 The ACCA defines a “serious drug offense” as including “an offense under
State law, involving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. [§] 802)), for which a maximum term
of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii). No one disputes that cocaine is a controlled substance and
that a violation of § 893.13(1)(a)(1) involving cocaine is punishable by up to 15
years’ imprisonment. See Fla. Stat. §§ 893.13(1)(a)(1), 893.03(2)(a)4,
775.082(3)(d).
7 Specifically, we rejected the argument that the sale of cocaine under Florida
law—which includes attempted transfers—does not satisfy the requirements
USCA11 Case: 22-10028 Document: 47-1 Date Filed: 01/17/2024 Page: 7 of 7
22-10028 Opinion of the Court 7
and it squarely forecloses Smith’s claim. 8 See Archer, 531 F.3d at
1352.
Accordingly, Smith’s claims are foreclosed by binding
precedent, and, therefore, he cannot show that any error, much
less plain error occurred. Consequently, we affirm.
AFFIRMED.
set forth in Shular v. United States, 140 S. Ct. 779 (2020), because the attempted
transfer of a controlled substance does not “necessarily entail” the conduct of
distributing. Penn, 63 F.4th at 1316. As in Penn, “Shular’s use of the phrase
‘necessarily entail[s]’ does not help [Smith]. Because ‘distributing’ means
attempting to transfer drugs, Florida law’s proscription of attempted transfers
is a proscription of distribution itself. There is a perfect match between what
the state offense proscribes and what is ‘distributing.’” Id. In other words,
“[t]he conduct that Section 893.13(1)(a) prohibits—attempting to transfer—is
not merely related to distributing, it is ‘distributing.’ Shular’s reading of
‘involving’ as ‘necessarily entails’ has no bearing on this case.” Id.
Likewise, we also rejected the argument that sale of cocaine under
Florida law could not be a serious drug offense because it encompasses
attempted transfers, which is an inchoate offense. See id. We reasoned that
“Florida’s prohibition on drug sales, even if defined to include an attempted
transfer, is not an inchoate offense. Rather, . . . attempts to transfer drugs are
part of completed sale offenses.” Id. (emphasis omitted).
8 After our decision in Penn, the government filed a notice of supplemental
authority arguing that Penn squarely foreclosed Smith’s challenge to the
qualification of his sale of cocaine conviction as an ACCA predicate. In
response, Smith filed a notice of supplemental authority requesting that we
hold the appeal in abeyance pending the resolution of a petition for rehearing
en banc that had been filed in the Penn case. We deny Smith’s request to hold
his appeal in abeyance as moot because the petition for rehearing en banc in
Penn has since been denied.