USCA11 Case: 22-10578 Document: 45-1 Date Filed: 05/25/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10578
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER ALEXANDER NERIUS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80053-RAR-1
____________________
USCA11 Case: 22-10578 Document: 45-1 Date Filed: 05/25/2023 Page: 2 of 7
2 Opinion of the Court 22-10578
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Christopher Nerius appeals his 84-month sentence for pos-
session with intent to distribute cocaine. See
21 U.S.C. § 841(a)(1)
and (b)(1)(C). At sentencing, the district court classified Nerius as
a “career offender” under the Sentencing Guidelines, see U.S.S.G.
§ 4B1.1, based on prior Florida convictions for selling cocaine, see
Fla. Stat. § 893.13, and for robbery, see
Fla. Stat. § 812.13. Chal-
lenging this designation on appeal, Nerius argues that the prior
drug convictions are not predicate “controlled substance of-
fense[s]” under the career-offender guideline because § 893.13 lacks
a mens rea element and includes drugs that are not considered con-
trolled substances under federal law. He also contends that the
robbery conviction does not qualify as a predicate “crime of vio-
lence” because § 812.13 does not categorically have intentional
force as an element. Because Nerius’s arguments are either fore-
closed by binding precedent or insufficient to establish plain error,
we affirm.
We ordinarily review de novo a district court’s decision to
classify a defendant as a career offender under § 4B1.1. United
States v. Whitson,
597 F.3d 1218, 1220 (11th Cir. 2010). But we
review for plain error issues raised for the first time on appeal.
United States v. Morel,
63 F.4th 913, 917 (11th Cir. 2023). “Under
plain-error review, we can reverse only if the error is plain, affects
substantial rights, and seriously affects the fairness, integrity, or
USCA11 Case: 22-10578 Document: 45-1 Date Filed: 05/25/2023 Page: 3 of 7
22-10578 Opinion of the Court 3
public reputation of the judicial proceeding.”
Id. (quotation marks
omitted).
A defendant is classified as a “career offender” under the
guidelines if, among other things, he “has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). A “controlled substance offense” in-
cludes a state or federal felony offense “that prohibits . . . the pos-
session of a controlled substance (or a counterfeit substance) with
intent to manufacture, import, export, distribute, or dispense.” Id.
§ 4B1.2(b). A “crime of violence” includes a state or federal felony
offense that “has as an element the use, attempted use, or threat-
ened use of physical force against the person of another.” Id. §
4B1.2(a)(1).
Here, Nerius has not shown that the district court erred in
classifying him as a career offender. We start with his drug convic-
tions under
Fla. Stat. § 893.13(1)(a), which makes it unlawful to
“sell, manufacture, or deliver, or possess with intent to sell, manu-
facture, or deliver, a controlled substance.”
Fla. Stat. § 893.13(1)(a).
“[K]nowledge of the illicit nature of a controlled substance is not
an element” of this offense.
Id. § 893.101(2).
Nerius contends that § 893.13(1) is not categorically a “con-
trolled substance offense” under the career-offender guideline be-
cause it does not require proof of mens rea as to the illicit nature of
the controlled substance. As he acknowledges, though, we have
“squarely held that the definition of ‘controlled substance offense’
in § 4B1.2 does not require that a predicate state drug offense
USCA11 Case: 22-10578 Document: 45-1 Date Filed: 05/25/2023 Page: 4 of 7
4 Opinion of the Court 22-10578
include an element of mens rea with respect to the illicit nature of
the controlled substance.” United States v. Pridgeon,
853 F.3d
1192, 1198 (11th Cir. 2017) (reaffirming United States v. Smith,
775
F.3d 1262, 1267 (11th Cir. 2014)). Thus, we do not refer to “statu-
tory federal analogues in considering § 893.13 because . . . the sen-
tencing guidelines did not define ‘controlled substance offense’ by
reference to those analogues and the sentencing guidelines defini-
tion [i]s unambiguous.” Pridgeon,
853 F.3d at 1198. So Nerius’s §
893.13 drug convictions qualify under § 4B1.2 despite the lack of a
mens rea element. See Smith,
775 F.3d at 1267.
Nerius believes that our precedent on this point is wrong,
but we are bound to apply Pridgeon and Smith. That’s because “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 [C]ourt sitting en banc.” United
States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008).
Nerius also contends that the district court erred by failing
to apply a federal definition for the term “controlled substance,”
which is undefined in the guidelines. In his view, a state statute
“can only qualify as a predicate offense if it also necessarily involved
a federally-controlled substance and defines controlled substances
the same as, or more narrowly than, the federal definition,” as de-
rived from the federal drug schedules. Because Florida law prohib-
its the possession of controlled substances that “are not on the fed-
eral schedule,” he reasons, the statute is overbroad and fails the cat-
egorical approach.
USCA11 Case: 22-10578 Document: 45-1 Date Filed: 05/25/2023 Page: 5 of 7
22-10578 Opinion of the Court 5
We review this argument for plain error because it was not
raised below. See Morel, 63 F.4th at 917. Nerius cannot establish
plain error. As he notes, there is a circuit split on this issue. Com-
pare, e.g., United States v. Bautista,
989 F.3d 698, 702 (9th Cir. 2021)
(holding that the term “controlled substance” in § 4B1.2(b) refers
to a controlled substance under federal law, not state law), with
United States v. Lewis,
58 F.4th 764, 768–69 (3d Cir. 2023) (holding
“that drugs regulated by state (but not federal) law are still con-
trolled substances” for purposes of § 4B1.2). We have not directly
resolved this issue.
Under our precedent, “where neither the Supreme Court
nor this Court has ever resolved an issue, and other circuits are split
on it, there can be no plain error in regard to that issue.” United
States v. Aguillard,
217 F.3d 1319, 1321 (11th Cir. 2000). Because
other circuits are split on the definition of “controlled substance”
under § 4B1.2, and neither this Court nor the Supreme Court has
directly spoken on the matter, Nerius cannot show plain error.
Finally, Nerius argues that his robbery conviction under
Fla.
Stat. § 812.13 does not qualify as a predicate “crime of violence”
because the offense can be committed without the use, attempted
use, or threatened use of intentional force. Again, though, this ar-
gument is foreclosed by binding precedent, as he concedes.
Florida law defines robbery as “the taking of money or other
property . . . from the person or custody of another, . . . when in
the course of the taking there is the use of force, violence, assault,
or putting in fear.”
Fla. Stat. § 812.13(1). This statute requires
USCA11 Case: 22-10578 Document: 45-1 Date Filed: 05/25/2023 Page: 6 of 7
6 Opinion of the Court 22-10578
“resistance by the victim that is overcome by the physical force of
the offender.” Robinson v. State,
692 So. 2d 883, 886 (Fla. 1997).
In United States v. Lockley, we held that a conviction under
§ 812.13(1) qualified as a “crime of violence” for purposes of the
career-offender guideline because it has as an element the “use, at-
tempted use, or threatened use of physical force against the person
of another.”
632 F.3d 1238, 1245 (11th Cir 2011) (quoting U.S.S.G.
§ 4B1.2(a)(1)); see also Stokeling v. United States,
139 S. Ct. 544,
554–55 (2019) (holding that Florida robbery under § 812.13(1) qual-
ifies as a violent felony under the Armed Career Criminal Act’s el-
ements clause). We noted that the statute required the use of force,
violence, a threat of imminent force or violence coupled with ap-
parent ability, or some act that puts the victim in fear of death or
great bodily harm. Lockley,
632 F.3d at 1245. And we reasoned
that it was “inconceivable that any act which causes the victim to
fear death or great bodily harm would not involve the use or
threatened use of physical force.”
Id.
Nerius maintains that the panel in Lockley misapplied the
categorical approach and failed to consider Leocal v. Ashcroft,
543
U.S. 1 (2004). But as he concedes, our prior-panel-precedent rule
admits no exception for “overlooked or misinterpreted Supreme
Court precedent.” United States v. Fritts,
841 F.3d 937, 942 (11th
Cir. 2016) (reaffirming Lockley). So we conclude that his Florida
robbery conviction qualifies as a “crime of violence.”
Because Nerius has at least two prior convictions for a “con-
trolled substance offense” or a “crime of violence,” the district
USCA11 Case: 22-10578 Document: 45-1 Date Filed: 05/25/2023 Page: 7 of 7
22-10578 Opinion of the Court 7
court properly classified him as a career offender under § 4B1.1.
We affirm his sentence.
AFFIRMED.
