                                                                   [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                       MAY 25, 2012
                                            No. 11-10456
                                                                        JOHN LEY
                                        Non-Argument Calendar
                                                                         CLERK
                                      ________________________

                          D.C. Docket No. 8:09-cr-00484-VMC-MAP-4


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus


MAURICE JEFFERSON,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (May 25, 2012)

Before HULL, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
      Maurice Jefferson appeals his conviction and 151-month sentence, imposed

after he pled guilty to one count of conspiracy to possess heroin with intent to

distribute, in violation of 21 U.S.C. §§ 846, 841. On appeal, Jefferson argues: (1)

he should be allowed to withdraw his plea, (2) he does not qualify for the career

offender enhancement, and (3) the career offender enhancement’s residual clause

is unconstitutionally vague. After review, we affirm Jefferson’s conviction and

sentence.

                                          I.

      Jefferson argues, for the first time on appeal, that the magistrate judge failed

to adequately explain the elements of the underlying offense of possession with

intent to distribute heroin. He claims the magistrate judge’s error goes to one of

the core concerns of Rule 11 and constitutes plain error, such that he should be

allowed to withdraw his plea.

      Jefferson fails to demonstrate plain error. No binding precedent establishes

that a magistrate judge’s failure to describe the underlying offense in a conspiracy

charge beyond reading the plea agreement and elements of the offense constitutes

plain error. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.

2003) (stating there can be no plain error where there is no binding precedent in

this Court or the Supreme Court directly resolving the issue). In fact, we have

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previously held that “[i]n a conspiracy, however, neither actual possession nor

actual distribution is a necessary element of the crime.” United States v. Diaz, 190

F.3d 1247, 1253 (11th Cir. 1999).

                                                 II.

       Jefferson next argues that Fla. Stat. § 843.01 does not constitute a “crime of

violence” for purposes of U.S.S.G. § 4B1.2's residual clause. He concedes United

States v. Nix, 628 F.3d 1341 (11th Cir. 2010), cert. denied,132 S. Ct. 258 (2011),

held that § 843.01 constituted a violent felony under the ACCA’s residual clause,

but contends that Sykes v. United States, __ U.S. __, 131 S. Ct. 2267 (2011), has

abrogated Nix.

       In Nix, we held that a defendant’s conviction for a violation of § 843.01

constituted a violent felony under the ACCA’s residual clause. Nix, 628 F.3d at

1342.1 We are bound by our decision in Nix because it has not been overruled or

abrogated by the Supreme Court or by this Court sitting en banc. See United

States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“To constitute an

‘overruling’ for the purposes of this prior panel precedent rule, the Supreme Court



       1
          The definition of a “crime of violence” under § 4B1.2(a) is “virtually identical” to the
definition of a “violent felony” in the ACCA, and we apply a similar analysis in deciding whether
a given offense qualifies as a crime of violence or a violent felony. United States v. Alexander, 609
F.3d 1250, 1253 (11th Cir. 2010), cert. denied, 131 S.Ct. 1783 (2011).

                                                 3
decision ‘must be clearly on point.’”). Further, though Jefferson advances

arguments as to why Sykes abrogates Nix, Sykes is not clearly on point and does

not directly overrule or abrogate Nix. See Sykes, 131 S. Ct. at 2270-77 (holding

that an Indiana offense of felony vehicle flight constituted a violent felony for the

purposes of the ACCA).

                                           III.

        Jefferson argues, for the first time on appeal, that the residual clause of

U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague, relying on Justice Scalia’s

dissenting opinion in Sykes. However, Jefferson does not offer any controlling

case in this Court or the Supreme Court which establishes that the residual clause

of § 4B1.2(a)(2) is void for vagueness. As a result, Jefferson fails to show that

application of the residual clause was plain error. See Lejarde-Rada, 319 F.3d at

1291.

        AFFIRMED.




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