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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10194
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES KEVIN AGERTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:21-cr-00027-AW-MAF-1
____________________
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2 Opinion of the Court 22-10194
Before WILSON, LUCK, and HULL, Circuit Judges.
PER CURIAM:
Charles Agerton appeals his 135-month sentence for
possession with intent to distribute methamphetamine, in
violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). On appeal,
Agerton argues that the district court erred (1) in sentencing him
as a career offender, and (2) in applying a two-level increase for
maintaining a premises for the purpose of manufacturing or
distributing a controlled substance under U.S.S.G. § 2D1.1(b)(12).
After careful review, we affirm.
I. BACKGROUND
A. Offense Conduct
Beginning in the fall of 2019, the Wakulla County Sheriff’s
Office (“WCSO”) in Florida received several citizen complaints
about drug activity at a residence in Panacea, Florida. In
November 2019, the WCSO Narcotics Unit began to investigate
the sale and distribution of illegal drugs from the residence.
In January 2020, the WCSO conducted two controlled
purchases of 1.4 and 2.6 grams of methamphetamine from Agerton
at the residence. Based on the controlled purchases, the WCSO
applied for and was granted a search warrant for the residence.
In February 2020, WCSO officers searched the residence.
The officers found Agerton in a bedroom inside the residence. In
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22-10194 Opinion of the Court 3
that same bedroom, the officers located 90.3 grams of crystal
methamphetamine.
During the search, the officers also found 1.7 grams of
cocaine, 26.7 grams of marijuana, and drug paraphernalia,
including digital scales and small clear plastic baggies. The officers
found three other people in the residence and located small
amounts of methamphetamine and drug paraphernalia in the
residence’s other bedrooms. The officers also seized $731 in cash.
Agerton was detained. After he was advised of his Miranda 1
rights, Agerton gave a statement to law enforcement. Agerton
claimed ownership of the drugs located in the bedroom where he
was found. Agerton admitted that he sold drugs for profit to
further his drug business.
The total weight of pure methamphetamine purchased in
the controlled buys and seized from the residence was 74.9 grams.
The total converted weight for all drugs involved in this case was
1,498.61 kilograms.
At the time of his arrest, Agerton had rented and resided at
the residence where the drugs were found for approximately four
years.
B. Agerton’s Indictment and Guilty Plea
In June 2021, Agerton was indicted for possession with
intent to distribute 50 grams or more of methamphetamine, in
1 Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602 (1966).
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4 Opinion of the Court 22-10194
violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). In October
2021, Agerton pled guilty to that offense.
C. Agerton’s Presentence Investigation Report (“PSI”) and
Objections
The PSI assigned Agerton an offense level of 32 consisting
of: (1) a base offense level of 30 under U.S.S.G. § 2D1.1(a)(5), plus
(2) two levels under U.S.S.G. § 2D1.1(b)(12) because Agerton
maintained a premises for the purpose of manufacturing or
distributing a controlled substance.
Next, the PSI applied the greater offense level of 37 under
U.S.S.G. § 4B1.1(b)(1) because it concluded Agerton was a career
offender. The PSI identified these two prior convictions as
qualifying felony convictions of a controlled substance offense:
(1) a 2016 Florida conviction for sale of marijuana, and (2) a 2018
Florida conviction for sale of methamphetamine.
Finally, the PSI reduced Agerton’s offense level by three
under U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility.
This yielded a total offense level of 34.
The PSI calculated a criminal history category of III based
on six criminal history points. Then, the PSI assigned Agerton a
criminal history category of VI under § 4B1.1(b) due to Agerton’s
status as a career offender. With a total offense level of 34 and a
criminal history category of VI, Agerton’s advisory guidelines
range was 262 to 327 months’ imprisonment.
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Agerton objected to the two-level drug-premises increase
under § 2D1.1(b)(12) and to the career-offender designation under
§ 4B1.1. As to his career-offender status, Agerton argued that his
prior offenses did not qualify as predicate controlled substance
offenses because Florida’s controlled substance statute
(1) criminalizes the inchoate offense of attempted sale, (2) does not
require the state to prove mens rea as to the illicit nature of the
controlled substance, and (3) defines marijuana more broadly than
the Controlled Substances Act (“CSA”).
D. Agerton’s Sentencing
On January 3, 2022, at Agerton’s sentencing hearing, the
district court overruled Agerton’s objections to his career-offender
status as foreclosed by this Court’s precedent.
Next, the district court found that the government met its
burden under § 2D1.1(b)(12) to show that Agerton maintained a
premises for the purpose of manufacturing or distributing a
controlled substance based on the unobjected-to facts in the PSI.
These facts included (1) the volume of drugs and drug
paraphernalia found at Agerton’s residence, (2) the length of time
Agerton lived at the residence, (3) law enforcement’s two
controlled purchases of methamphetamine from Agerton at his
residence, and (4) the multiple complaints about drug activity at
the residence by people in the neighborhood. The district court
thus overruled Agerton’s objection to the two-level drug-premises
increase and adopted the PSI’s guidelines calculations.
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Ultimately, the district court (1) determined that a
127-month downward variance from the 262 to 327-month
advisory guidelines range was appropriate, and (2) sentenced
Agerton to 135 months’ imprisonment, followed by 10 years of
supervised release.
The district court stated that it had considered all of the
18
U.S.C. § 3553(a) factors, including the seriousness of Agerton’s
offense, the need to protect the public, and the need to provide a
just punishment. The district court also explained that its 127-
month downward variance was warranted based on (1) Agerton’s
age and health, (2) the lack of violence in his criminal history, and
(3) the court’s finding that “the overall career offender
enhancement would have been too great” given the facts of
Agerton’s case. The district court explicitly stated that it would
have imposed the same sentence regardless of how the
§ 2D1.1(b)(12) drug-premises issue was resolved.
Agerton timely appealed.
II. DISCUSSION
On appeal, Agerton contends that the district court erred
(1) in designating him as a career offender under § 4B1.1(b)(1), and
(2) in applying a two-level drug-premises increase under
§ 2D1.1(b)(12). We address each issue in turn.
A. Career-Offender Designation
A defendant is a career offender under the Guidelines if
(1) he was at least 18 years old when he committed the instant
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22-10194 Opinion of the Court 7
offense of conviction, (2) “the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance
offense,” and (3) 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). The career-offender guideline in § 4B1.2(b)
defines a “controlled substance offense” as “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 the possession of a
controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense.” Id. § 4B1.2(b) (emphasis added). 2
Both of Agerton’s relevant drug convictions are under
Fla.
Stat. § 893.13(1)(a), which provides that “a person may not sell,
manufacture, or deliver, or possess with intent to sell,
manufacture, or deliver, a controlled substance.”
Fla. Stat.
§ 893.13(1)(a) (2016); see also
Fla. Stat. § 893.13(1)(a) (2018) (same). 3
This Court expressly held in United States v. Smith that a drug
conviction under
Fla. Stat. § 893.13(1)(a) is a “controlled substance
offense” under the career-offender provision in U.S.S.G. § 4B1.2(b).
775 F.3d 1262, 1268 (11th Cir. 2014); see also Pridgeon, 853 F.3d at
1197–98 (following Smith). The Smith Court concluded that the
2 We review de novo whether a prior conviction is a “controlled substance
offense” under the Sentencing Guidelines. United States v. Pridgeon,
853 F.3d
1192, 1198 n.1 (11th Cir. 2017).
3 Agerton does not dispute that his prior drug convictions are all felonies under
Florida law and are punishable by more than one year of imprisonment.
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definition of a “controlled substance offense” in § 4B1.2(b) does not
require that a predicate state offense include an element of mens
rea with respect to the illicit nature of the controlled substance.
775
F.3d at 1268. In Smith, this Court declined to look to statutory
federal analogues in considering whether § 893.13(1)(a) was a
controlled substance offense because we concluded that (1) the
Guidelines do not define “controlled substance offense” by
reference to those analogues and (2) the definition of “controlled
substance offense” in § 4B1.2(b) is unambiguous. Id. at 1267–68.
Agerton argues that his Florida drug convictions are not
“controlled substance offenses” under § 4B1.2(b) because the
Florida controlled substance statute,
Fla. Stat. § 893.13(1)(a),
proscribes a broader range of conduct than § 4B1.2(b)’s definition
of “controlled substance offense.” Relying on the categorical
approach, Agerton contends that, because § 893.13(1)(a)
criminalizes attempt crimes, his Florida drug convictions cannot
qualify as controlled substance offenses under § 4B1.2(b). See
United States v. Dupree,
57 F.4th 1269, 1277 (11th Cir. 2023) (en banc)
(concluding that the definition of “controlled substance offense” in
§ 4B1.2(b) “unambiguously excludes inchoate offenses”).
The problem for Agerton is that this Court recently held in
United States v. Penn that “[t]he sale of drugs is not an inchoate
offense under Florida law.”
63 F.4th 1305, 1317 (11th Cir. 2023). In
Penn, the defendant argued that his prior Florida drug convictions
under § 893.13(1)(a)—the same statute here—did not qualify as
serious drug offenses under the Armed Career Criminal Act
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(“ACCA”) because § 893.13(1)(a) is broader and criminalizes the
inchoate offense of attempted transfer of a controlled substance.
Id. at 1308, 1317.
Applying the categorical approach, this Court rejected
defendant Penn’s arguments and concluded that (1) the least
culpable conduct under
Fla. Stat. § 893.13(1)(a) is the attempted
transfer of a controlled substance; (2) the attempted transfer of a
controlled substance constitutes “distributing” under the ACCA;
(3) a defendant who attempts to transfer drugs commits a completed
crime of distribution, not an inchoate crime of attempted
distribution; and (4) therefore, defendant Penn’s prior convictions
under § 893.13(1)(a) qualified as ACCA predicates. Id. at 1311–17.
In so holding, this Court stressed that, “like the crime of
distribution under federal law, the crime of selling drugs under
Florida law is not an inchoate offense.” Id. at 1317 (emphasis added).
So too here. Even though
Fla. Stat. § 893.13(1)(a)
criminalizes the attempted transfer of drugs, this Court held in Penn
that a defendant who attempts to transfer drugs commits the
completed crime of distribution, not the inchoate crime of attempted
distribution. See
id. at 1311–12, 1316–17. Because Florida’s
controlled substance statute in § 893.13(1)(a) does not criminalize
inchoate offenses, this Court concluded that Florida’s § 893.13(1)(a)
statute is not broader than the definition of “controlled substance
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10 Opinion of the Court 22-10194
offense” in the § 4B1.2(b) guideline. See id. at 1317. 4 Agerton’s case
is controlled by our precedent.
Agerton’s remaining arguments fare no better. First,
Agerton contends that his prior convictions under
Fla. Stat.
§ 893.13(1)(a) do not qualify as predicate “controlled substance
offenses” because that Florida statute lacks a mens rea element as
to knowledge of the illicit nature of a controlled substance. Second,
Agerton asserts that his § 893.13(1)(a) conviction in 2016 for sale of
marijuana is not a controlled substance offense under § 4B1.2(b)
because Florida’s definition of marijuana at the time of his prior
conviction in 2016 was broader than the definition of marijuana in
the federal CSA. Specifically, Agerton explains that, at the time of
his 2016 conviction, Florida law criminalized the sale of hemp, but
the CSA’s definition of marijuana did not include hemp at the time
of his federal sentencing in 2022. 5 Compare
Fla. Stat. § 893.02(3)
(2016), with
21 U.S.C. § 802(16).
4 Agerton filed a notice of supplemental authority, requesting that this Court
stay his appeal pending resolution of the petition for rehearing en banc filed in
Penn. Because this Court has since denied the petition in Penn, we deny
Agerton’s request as moot.
5 By contrast, the government contends that we should compare Florida’s
definition of marijuana with the federal CSA’s definition of marijuana at the
time of Agerton’s prior conviction in 2016. In 2016, Florida law and federal
law both included hemp in the definition of marijuana. See
Fla. Stat.
§ 893.02(3) (2016);
21 U.S.C. § 802(16) (2016). We need not reach this issue
because we held in Smith that the Guidelines do not define “controlled
substance offense” by reference to statutory federal analogues, like the CSA.
See Smith,
775 F.3d at 1268.
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Agerton’s arguments are also foreclosed by our binding
precedent. In Smith, this Court concluded that (1) a prior
conviction under
Fla. Stat. § 893.13(1)(a) qualifies as a “controlled
substance offense” under the § 4B1.2(b) guideline, notwithstanding
the lack of an element of mens rea with respect to the illicit nature
of the controlled substance, and (2) the § 4B1.2(b) guideline does
not define “controlled substance offense” by reference to federal
statutory analogues. See Smith,
775 F.3d at 1267–68; see also
Pridgeon,
853 F.3d at 1198 (“We are bound to follow Smith.”);
United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008)
(explaining that a prior panel’s holding is binding on all subsequent
panels unless the Supreme Court or this Court sitting en banc
overrules it). The Smith Court did not expressly consider the
definition of marijuana, but “a prior panel precedent cannot be
circumvented or ignored on the basis of arguments not made to or
considered by the prior panel.” Tippitt v. Reliance Standard Life Ins.
Co.,
457 F.3d 1227, 1234 (11th Cir. 2006).
In light of our binding precedent, the district court properly
concluded that Agerton’s prior sale of marijuana and sale of
methamphetamine offenses, all violations of
Fla. Stat.
§ 893.13(1)(a), qualified as “controlled substance offenses” under
U.S.S.G. § 4B1.2(b). Because Agerton had two convictions for
“controlled substance offenses,” the district court did not err in
determining that Agerton was a career offender under § 4B1.1.
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B. Drug-Premises Increase
Agerton also challenges the district court’s application of a
two-level increase under § 2D1.1(b)(12) for maintaining a premise
for drug distribution. Agerton claims that the government failed
to prove that he maintained the home for the “primary purpose”
of distributing controlled substances. See U.S.S.G. § 2D1.1 cmt.
n.17 (stating manufacturing or distribution need not be the “sole
purpose” of the premises, but it must be a “primary or principal,”
rather than an “incidental or collateral,” use for the premises).
We review a district court’s factual finding that a defendant
maintained a premises for the manufacture or distribution of drugs
under the clear-error standard. United States v. George,
872 F.3d
1197, 1205 (11th Cir. 2017). However, a guidelines calculation
error is harmless if (1) the district court stated it would impose the
same sentence even if it decided the guidelines issue in the
defendant’s favor, and (2) the sentence is substantively reasonable.6
United States v. Keene,
470 F.3d 1347, 1349–50 (11th Cir. 2006).
Here, as to the merits, the evidence amply supports the
district court’s fact finding that Agerton maintained a premises for
the primary purpose of manufacturing or distributing a controlled
substance.
6 We review the substantive reasonableness of a sentence under the deferential
abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 41,
128 S. Ct.
586, 591 (2007).
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Beginning in the fall of 2019, law enforcement received
several citizen complaints about drug activity at Agerton’s
residence. Then, in January 2020, law enforcement officers
conducted two controlled purchases of methamphetamine from
Agerton at the residence. When officers searched Agerton’s
residence, they found him in a bedroom along with 90.3 grams of
crystal methamphetamine. The officers also found 1.7 grams of
cocaine, 26.7 grams of marijuana, $731 in cash, digital scales, and
small clear plastic baggies. After Agerton was detained, he
admitted (1) that he owned the drugs located in the bedroom
where he was found, and (2) that he sold drugs for profit to further
his drug business. Further, at the time his arrest, Agerton had
rented and resided at this residence for approximately four years.
Based on this evidence, the district court did not clearly err in
determining that the § 2D1.1(b)(12) drug-premises increase was
appropriate.
Indeed, this evidence is at least comparable to, if not
stronger than, the evidence in United States v. Rodriguez where this
Court affirmed the district court’s application of a § 2D1.1(b)(12)
drug-premises increase. United States v. Rodriguez, __ F.4th __, No.
20-13534,
2023 WL 4873851, at *5–6 (11th Cir. Aug. 1, 2023). In
that case, this Court observed that (1) law enforcement conducted
eight trash pulls outside of Rodriguez’s house and found
“supplement packaging with unknown white powder, discarded
pills, ventilator masks, and gloves,” (2) during a search of
Rodriguez’s home, law enforcement found him trying to flush pills
down the toilet, (3) the search of his home revealed “56 grams of
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14 Opinion of the Court 22-10194
methamphetamine, approximately 300 grams of heroin,
approximately 10 grams of counterfeit pills containing
methamphetamine, $50,000 in cash, a chemical mask, and two
scales,” and (4) Rodriguez admitted at his sentencing hearing that
he prepared and distributed drugs at his house.
Id. (stating “[c]ourts
should view the totality of the circumstances to determine whether
a defendant maintained a premises for drug distribution or
manufacture” (quotation marks omitted)).
Alternatively, any alleged error in applying the
drug-premises increase under § 2D1.1(b)(12) was harmless for two
independent, alternative reasons.
First, the district court, in imposing the 135-month sentence,
stated that it would have applied the same sentence regardless of
the outcome of the § 2D1.1(b)(12) drug-premises issue. We cannot
say, and Agerton does not argue, that his 135-month sentence,
which represented a 127-month downward variance, was
substantively unreasonable. Thus, any error in calculating the
Guidelines was harmless. See id.
Second, even if the district court erroneously applied the
drug-premises increase under § 2D1.1(b)(12), Agerton’s advisory
guidelines range would have remained the same because Agerton’s
career-offender status drove the offense level—not the
drug-premises increase. To be sure, the drug-premises increase
added 2 levels to Agerton’s base offense level, resulting in an
adjusted offense level of 32. The PSI, however, applied the 2-level
drug-premises increase before it assigned Agerton an offense level
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of 37 due to his career-offender status. See U.S.S.G. § 1B1.1(a)(3),
(6) (instructing the court to “apply any appropriate specific offense
characteristics” before “[d]etermin[ing] from Part B of Chapter 4 any
other applicable adjustments”); id. § 4B1.1(b)(1) (increasing offense
level to 37 if, as here, the offense statutory maximum sentence is
life imprisonment). Because the drug-premises increase did not
affect the calculation of Agerton’s advisory guidelines range, we
conclude that any alleged error in applying the § 2D1.1(b)(12)
increase was harmless. See United States v. Sarras,
575 F.3d 1191,
1220 n.39 (11th Cir. 2009).
III. CONCLUSION
For the reasons stated, we affirm Agerton’s 135-month
sentence.
AFFIRMED.
