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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13355
Non-Argument Calendar
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D.C. Docket No. 9:18-cr-80074-DMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY BERNARD JIMERSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 24, 2019)
Before WILSON, ROSENBAUM, and HULL, Circuit Judges.
PER CURIAM:
Anthony Bernard Jimerson appeals his 120-month prison sentence for
distributing 0.27 grams of cocaine base, arguing that the district court erred in
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sentencing him as a “career offender” under the United States Sentencing
Guidelines. See U.S.S.G. § 4B1.1. The court applied the career-offender
enhancement because Jimerson had three prior Florida convictions for sale of
cocaine. On appeal, Jimerson maintains that these prior convictions are not predicate
“controlled substance offense[s]” for the enhancement because the statute of
conviction,
Fla. Stat. § 893.13(1), does not require proof of knowledge of the illicit
nature of the controlled substance. As he concedes, however, we have rejected this
same argument. United States v. Smith,
775 F.3d 1262, 1267–68 (11th Cir. 2014).
Because we are bound by Smith, we affirm Jimerson’s sentence.
The Sentencing Guidelines recommend increased penalties when a defendant
is a “career offender.” 1 See U.S.S.G. § 4B1.1. To qualify as a career offender, the
defendant must have “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” Id. § 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.
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Here, for example, Jimerson’s guideline range without the career-offender enhancement
was 21 to 27 months of imprisonment (total offense level 9; criminal history category VI). With
the enhancement, his guideline range was 151 to 188 months (total offense level 29; criminal
history category VI).
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Id. § 4B1.2(b).
Under Florida law, the sale, manufacture, or delivery of cocaine, or the
possession of cocaine with the intent to sell, manufacture, or deliver it, is a felony
punishable by a prison term of up to fifteen years. See
Fla. Stat. §§ 893.13(1)(a),
775.082(3)(d). “[K]nowledge of the illicit nature of a controlled substance is not an
element” of the offense.
Fla. Stat. § 893.101(2); see State v. Adkins,
96 So.3d 412,
415–16 (Fla. 2012). However, the government must still prove the defendant’s
knowledge of the presence of the substance, and the defendant may raise lack of
knowledge of the illicit nature of the substance as an affirmative defense. Adkins,
96 So. 3d at 416.
Jimerson argues that the Florida legislature’s decision to remove as an element
knowledge of the illicit nature of the controlled substance takes § 893.13(1) outside
the scope of the career-offender provision. But in Smith, we held that a prior
conviction under § 893.13(1) is a controlled substance offense under § 4B1.2(b) even
though it lacks that element of mens rea. Smith, 775 F.3d at 1267–68. Reviewing
the plain language of § 4B1.2(b)’s definition of controlled substance offense, we
concluded that no mens rea with respect to the illicit nature of the controlled
substance was expressed or implied in the definition. Id. at 1267. Rather,
§ 4B1.2(b)’s definition required only that the predicate statute “prohibits” certain
activities related to controlled substances. Id. We also found that the presumption
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in favor of mental culpability and the rule of lenity did not require us to imply an
element of mens rea in the guideline definition because the text of § 4B1.2(b) was
unambiguous. Id.
As Jimerson concedes, Smith squarely holds that his convictions under
Fla.
Stat. § 893.13(1) qualify as controlled substance offenses under § 4B1.2(b),
notwithstanding the lack of an element of mens rea with respect to the illicit nature
of the controlled substance. We are bound by that holding here. See United States
v. Pridgeon,
853 F.3d 1192, 1198 (11th Cir. 2017) (“We are bound to follow
Smith.”); United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008) (“[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 this court sitting
en banc”).
Under Smith, the district court properly applied the career-offender
enhancement because Jimerson’s three prior Florida convictions for sale of cocaine
qualify as controlled substance offenses. Because Jimerson raises no other argument
on appeal, we affirm his sentence.
AFFIRMED.
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