United States v. Viguens Cius

        USCA11 Case: 19-15031    Date Filed: 10/22/2020    Page: 1 of 5

                                                          [DO NOT PUBLISH]


                     FOR THE ELEVENTH CIRCUIT

                             No. 19-15031
                         Non-Argument Calendar

                  D.C. Docket No. 9:19-cr-80085-RAR-1






                Appeal from the United States District Court
                        Southern District of Florida

                            (October 22, 2020)

Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.

          USCA11 Case: 19-15031         Date Filed: 10/22/2020    Page: 2 of 5

      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.


      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

          USCA11 Case: 19-15031        Date Filed: 10/22/2020    Page: 3 of 5

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

          USCA11 Case: 19-15031        Date Filed: 10/22/2020    Page: 4 of 5

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.


       “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, 

862 F.3d 1290

, 1293 (11th Cir. 2017) (quoting United States v.


89 F.3d 1501

, 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, 

775 F.3d 1262

(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

          USCA11 Case: 19-15031       Date Filed: 10/22/2020    Page: 5 of 5

the state offense. 

Smith, 775 F.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, 775 F.3d at 1268

. The Supreme Court subsequently affirmed this Court’s

approach in Shular v. United States, 

140 S. Ct. 779

(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, 

531 F.3d 1347

, 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). 775 F.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.


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