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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D.C. Docket No. 9:19-cr-80085-RAR-1
UNITED STATES OF AMERICA,
Appeal from the United States District Court
Southern District of Florida
(October 22, 2020)
Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.
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Viguens Cius (“Cius”) appeals his sentence following his guilty plea for one
count of distribution of a controlled substance and one count of possession with
intent to distribute a controlled substance, both in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C), as well as one count of possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal, Cius argues
that the district court erred in classifying him as a career offender under the U.S.
Sentencing Guidelines because his four prior state felony convictions under Florida
Statute § 893.13 do not constitute “controlled substance offenses” under the
Sentencing Guidelines. Because our precedent forecloses Cius’s argument, we
affirm his sentence.
I. FACTUAL AND PROCEDURAL HISTORY
Cius entered into a plea agreement, which specifically acknowledged the
possibility of the district court classifying him as a career offender. After the district
court accepted Cius’s guilty plea, a probation officer prepared a presentence
investigation report. Under U.S. Sentencing Guidelines § 2K2.1, a defendant who
previously committed “at least two felony convictions of . . . a controlled substance
offense” receives a base offense level of twenty-four. U.S.S.G. § 2K2.1(a)(2)
(emphasis added). The Sentencing Guidelines define a “controlled substance
offense” as a state or federal law offense, “punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
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dispensing of a controlled substance . . . or the possession of a controlled substance
. . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. §
4B1.2(b). The probation officer determined that Cius’s four prior convictions for
selling cocaine, in violation of Florida Statute § 893.13, warranted applying the
career offender enhancement, resulting in a base offense level of thirty-two. See Fla.
Stat. § 893.13(1)(a)(1) (stating that it is a second-degree felony to “sell, manufacture,
or deliver, or possess with intent to sell, manufacture, or deliver, a controlled
substance” described in Florida Statute § 893.03(2)(a));
id. § 893.03(2)(a) (listing
cocaine and any of its derivatives);
id. § 775.082(3)(d) (stating
that a term of
imprisonment for a second-degree felony is a term not exceeding fifteen years).
After applying the career offender enhancement and accounting for Cius’s timely
acceptance of responsibility, the probation officer calculated Cius’s offense level as
twenty-nine and his criminal history category as VI, which yielded a guidelines
range of 262 to 327 months of imprisonment. See U.S.S.G. § 4B1.1(c)(3).
Cius objected to the calculations in the presentence investigation report.
Specifically, he argued that because Florida Statute § 893.13 does not require a mens
rea element, his prior convictions under that statute should not qualify as a predicate
controlled substance offense under the Sentencing Guidelines. While Cius
acknowledged that this Court’s precedent precludes his argument, he argued that the
district court should adopt the approach taken by the Second, Fifth, and Ninth
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Circuits, which have required a mens rea element in state statutes before applying
similar enhancements. The district court sentenced Cius below the Sentencing
Guidelines range to 240 months of imprisonment. This timely appeal followed.
II. STANDARD OF REVIEW
“This Court reviews de novo whether a prior conviction is a ‘controlled
substance offense’ under Section 4B1.2(b)” of the Sentencing Guidelines. United
States v. Lange,
, 1293 (11th Cir. 2017) (quoting United States v.
, 1505 (11th Cir. 1996)).
On appeal, Cius argues that the district court erred in finding that his state-law
convictions for selling cocaine were predicate offenses for a career offender
determination given the lack of a mens rea requirement for those convictions. Cius,
however, acknowledges that his argument is contrary to this Court’s decision in
United States v. Smith,
(11th Cir. 2014). In Smith, we rejected the
generic-offense analysis that Cius now advocates for in this case and concluded that
a court need not determine whether the elements of a state law conviction serving as
a predicate drug offense match “the elements of ‘generic’ definitions of ‘serious drug
offense’ and ‘controlled substance offense’” under federal law, but instead, stated
that the definitions of “serious drug offense” and “controlled substance offense” in
§ 924(e)(2)(A) and U.S. Sentencing Guidelines § 4B1.2(b) should be compared to
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the state offense.
Smith,775F.3d at 1267
. As a result, we held that a conviction
under Florida Statute § 893.13(1) is a “serious drug offense” under § 924(e)(2)(A)
and a “controlled substance offense” under Sentencing Guidelines § 4B1.2(b).
Smith,775F.3d at 1268
. The Supreme Court subsequently affirmed this Court’s
approach in Shular v. United States,
(2020), determining that a
sentencing enhancement is appropriate when the conviction involves certain
specified conduct, even if the elements of the state law crime are not the same as
those of the generic offense. See
id. at 787.
Until the Supreme Court or this Court sitting en banc overrules Smith, it
remains binding precedent in this Circuit, and we must apply it to this case. United
States v. Archer,
, 1352 (11th Cir. 2008) (describing the prior
precedent rule). Under Smith, Florida Statute § 893.13(1) is both a “serious drug
offense” under § 924(e)(2)(A) and a “controlled substance offense” under
Sentencing Guidelines §
4B1.2(b).775F.3d at 1268
. Because Smith remains
binding precedent, Cius’s four Florida convictions for the sale of cocaine in violation
of Fla. Stat. § 893.13 are qualifying predicate convictions and the district court did
not err in sentencing Cius under the career offender enhancement.
Accordingly, we affirm Cius’s sentence.