            Case: 19-10580   Date Filed: 05/05/2020   Page: 1 of 4



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10580
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:18-cr-80208-RLR-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

HENRY HORACE GIVINS,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (May 5, 2020)

Before WILLIAM PRYOR, JILL PRYOR, and TJOFLAT, Circuit Judges.

PER CURIAM:
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       Henry Givins appeals his 120-month sentence for possession with intent to

distribute cocaine and fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).

He argues that the District Court erred in sentencing him as a career offender under

§ 4B1.1(a) of the U.S. Sentencing Guidelines based on his two Florida convictions

for sale of cocaine and his Florida conviction for possession of cocaine with intent

to sell. He claims that these offenses do not qualify as predicate “controlled

substance offense[s]” within the meaning of U.S.S.G. § 4B1.2(b) because Florida

law does not contain a mens rea element regarding the illicit nature of the

controlled substance.

      We review de novo a district court’s interpretation and application of the

Sentencing Guidelines, including its decision to classify a defendant as a career

offender under U.S.S.G. § 4B1.1. United States v. Gibson, 434 F.3d 1234, 1243

(11th Cir. 2006). We also review de novo whether a defendant’s prior conviction

qualifies as a “controlled substance offense” under the Sentencing Guidelines.

United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017). We must follow a

prior binding precedent unless and until it is overruled by this Court sitting en banc

or the Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th

Cir. 2008).

      Section 4B1.1 of the Sentencing Guidelines provides that a defendant is a

career offender if he was at least eighteen years old when he committed the instant


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offense of conviction, the instant offense of conviction is a felony that is either a

crime of violence or a controlled substance offense, and the defendant has at least

two prior felony convictions for either a crime of violence or a controlled

substance offense. U.S.S.G. § 4B1.1(a). It defines a “controlled substance

offense” as an offense under federal or state law that is punishable by a term of

imprisonment greater than one year and that prohibits, among other things, the

distribution of a controlled substance or the possession of a controlled substance

with intent to distribute. Id. § 4B1.2(b).

      In United States v. Smith, we rejected the argument that an offense under

Fla. Stat. § 893.13(1) for possession of a controlled substance with intent to sell

was not a “controlled substance offense” within the meaning of U.S.S.G.

§ 4B1.2(b) because it lacked a mens rea element and therefore did not meet the

generic definition of a controlled substance offense. 775 F.3d 1262, 1267 (11th

Cir. 2014). We reasoned that it was unnecessary to look for the elements of a

generic definition of a “controlled substance offense” because that term is defined

in the Guidelines, and the Guidelines definition does not require, either explicitly

or implicitly, that a predicate state offense include an element of mens rea with

respect to the illicit nature of the controlled substance. Id. at 1267–68. The

Guidelines definition merely requires that the predicate offense “prohibit[]” certain

conduct relating to controlled substances, including, among other things, the


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possession of a controlled substance with the intent to distribute. Id. at 1267.

Since Fla. Stat. § 893.13(1) prohibited that conduct, we concluded that Fla. Stat.

§ 893.13(1) was a controlled substance offense under § 4B1.2(b). Id. at 1267–68.

      Givins acknowledges that his argument—that his Florida drug offenses do

not qualify as predicate offenses because of the lack of a mens rea element

regarding the illicit nature of the substance—is foreclosed by our precedent in

Smith. Based on our binding precedent in Smith, the District Court did not err in

sentencing Givins as a career offender because his Florida drug offenses qualify as

“controlled substance offense[s]” under U.S.S.G. § 4B1.2(b). Accordingly, we

affirm.

      AFFIRMED.




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