Case: 16-16176 Date Filed: 04/10/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16176
Non-Argument Calendar
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D.C. Docket No. 3:15-cr-00174-HES-JBT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHANE RICHARD ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 10, 2017)
Before MARCUS, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Shane Richard Robinson appeals his 127-month sentence, imposed below
his applicable Sentencing Guidelines range, after he pled guilty to one count of
possession of cocaine and cocaine base with intent to distribute, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C). On appeal, Robinson argues that the district
court erred in applying the U.S.S.G. § 4B1.1 career offender enhancement when
calculating the guideline range for his sentence. He contends that his prior
convictions in 2008 for the sale of cocaine within 1,000 feet of a convenience
business and in 2013 for the sale of cocaine, both under Fla. Stat. § 893.13, lacked
a mens rea requirement and thus did not qualify as “controlled substance offenses”
supporting the application of the career offender enhancement.
We review de novo whether the career offender enhancement properly was
imposed under the Sentencing Guidelines. United States v. Whitson, 597 F.3d
1218, 1220 (11th Cir. 2010). A defendant is deemed a career offender if, among
other things, he has at least two prior felony convictions for a controlled substance
offense. U.S.S.G. § 4B1.1(a). A “controlled substance offense” is:
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 a
counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense.
Id. § 4B1.2(b).
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Case: 16-16176 Date Filed: 04/10/2017 Page: 3 of 3
Florida law punishes the sale, manufacture, delivery, or possession with
intent to sell, manufacture, or deliver cocaine within 1,000 feet of a convenience
business as a first degree felony. Fla. Stat. § 893.13(e)(1). First degree felonies
are punishable by up to 30 years’ imprisonment. Id. § 775.082(3)(b)(1). Florida
law punishes the sale, manufacture, delivery, or possession with intent to sell,
manufacture, or deliver, of cocaine as a second degree felony, punishable by a
prison term of up to 15 years. Id. §§ 893.13(1), 775.082(3)(d).
As Robinson acknowledges, we previously have held that a prior conviction
under § 893.13 is a “controlled substance offense” under U.S.S.G. § 4B1.2(b). See
United States v. Smith, 775 F.3d 1262, 1267-68 (11th Cir. 2014). Because we are
bound to follow that precedent unless and until it is overruled or undermined to the
point of abrogation by this Court sitting en banc or by the Supreme Court, we
acknowledge that he has preserved this challenge but do not address it further. See
United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003); see also United
States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (noting that, although a
decision of the Supreme Court may overrule or abrogate prior panel precedent,
such a decision “must be clearly on point” (internal quotation marks omitted)).
Accordingly, Robinson’s sentence is affirmed.
AFFIRMED.
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