           Case: 15-11641   Date Filed: 06/02/2016    Page: 1 of 8


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11641
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20892-DPG-1



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

KENNEDY FISHER RILEY,
a.k.a. Pine,

                                                     Defendant-Appellant.

                      ________________________

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

                              (June 2, 2016)

Before JORDAN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Kennedy Riley appeals his 151-month sentence for possession of cocaine, in

violation of 18 U.S.C. 922(a)(1). Riley raises two issues on appeal. First, he

argues that the district court erred by not making a definitive finding as to whether

his prior cocaine possession conviction was counseled. Second, he argues that the

conviction is not a controlled substance under the Sentencing Guidelines.



                                          I.


      On appeal, Riley argues that the district court made a substantial procedural

error during his sentencing hearing when it failed to make a finding as to whether

he had counsel for the 2011 conviction, as required by Fed.R.Crim.P.

32(i)(3)(B). He claims that the district court overruled his objection to the career

offender enhancement without making the required finding. Absent the career

offender designation, Riley argues that his sentencing guidelines range would

have been 46-57 months.

      We normally review de novo legal questions concerning the Federal Rules

of Criminal Procedure. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir.

2006). A claim preserved at sentencing is reviewed for harmless error if it does

not affect the substantial rights of the parties. United States v. Petho, 409 F.3d

1277, 1279 (11th Cir. 2005). Under this standard, we will only reverse if the



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error resulted in actual prejudice because it has a substantial and injurious or

influence on a defendant’s sentence. Id.

       Under Rule 32, a district court must—for any disputed portion of the

presentence report or other controverted matter—rule on the dispute or determine

that a ruling is unnecessary either because the matter will not affect sentencing, or

because the district court will not consider the matter in sentencing. Fed. R. Crim.

P. 32(i)(3)(B). A defendant triggers Rule 32(i)(3)(B) only by challenging

statements of fact that are in the PSI. United States v. Owen, 858 F.2d 1514, 1517

(11th Cir. 1988).

      For any finding that the district court makes under Rule 32(i)(3)(B), the

sentencing court “must append a copy of the court’s determinations under this

rule to any copy of the presentence report made available for the Bureau of

Prisons.” Fed. R. Crim. P. 32(1)(3)(C); see also United States v. Lopez, 907 F.2d

1096, 1101 (11th Cir. 1990). Strict adherence to Rule 32 is necessary because

the rule helps ensure that future decisions about a defendant’s penal treatment are

based on a fair and accurate PSI. Lopez, 907 F.2d at 1101. Further, if a

defendant challenges factual statements in the PSI, the government is required to

support the PSI by some reliable substantiation that is satisfactory to convince

the sentencing court that the truth of the PSI is not unlikely. United States v.

Restrepo, 832 F.2d 146, 149 (11th Cir. 1987).


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      We have held that an appellant generally cannot collaterally attack prior

convictions used in sentencing proceedings. United States v. Roman, 989 F.2d

1117, 1120 (11th Cir. 1993). If the defendant can demonstrate that a conviction

was presumptively void, though, the sentencing court is constitutionally required

to review the earlier conviction before relying on it. Id. at 1118. A defendant

ultimately bears the burden to show that his conviction is presumptively void.

United States v. Cooper, 205 F.3d 1279, 11287 (11th Cir. 2000).

      The district court erred when it did not make an explicit ruling concerning

whether Riley’s 2011 conviction was counseled. The district court stated that it

considered the evidence ambiguous, and it overruled the objection without making

an actual finding. Although it may be argued that the district court made an

implicit finding, Rule 32(i)(3)(B) requires that the district court make its findings

concerning factual disputes explicit or conclude that a finding is unnecessary. In

this case, it was necessary that the district court make a finding because using the

conviction to support career offender status added 30-40 months to Riley’s

sentence, and thus the error was not harmless. Moreover, the district court itself

concluded that the state court record was unclear in certain respects, defense

counsel averred that the plea “really wasn’t counseled,” and Riley’s statements in

allocution also cast doubt about what happened.




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      Finally, although the PSI showed that Riley committed many other

controlled substance offenses in the past, those convictions cannot be used to

support career offender status as they fall outside the fifteen year limit set out in

the Guidelines. Accordingly, we vacate in this respect and remand for further

proceedings.

                                               II.

      Riley argues, for the first time on appeal, that the district court erroneously

found that his F10004780A conviction under Fla. Stat. § 893.13 was a qualifying

substance offense under U.S.S.G. § 4B1.2. He recognizes that his argument is

foreclosed by United States v. Smith, 775 F.3d 1262 (11th Cir. 2014), cert. denied,

135 S. Ct. 2825 (2015), but he claims that this precedent violates the Supreme

Court’s ruling in United States v. LaBonte, 520 U.S.751, 117 S. Ct. 1673 (1997).

He argues that LaBonte requires controlled substance offenses under the

Guidelines be equivalent to federal controlled offenses, and because section

893.13 lacks a mens rea element, the conviction cannot qualify as a controlled

substance offense.

      When appropriate, we review the district court’s application of the

Guidelines de novo. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.

2006). However, when a defendant fails to object to errors at the district court

level, we review for plain error. United States v. Shelton, 400 F.3d 1325, 1328


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(11th Cir. 2005). Further, the prior precedent rule holds that a prior panel’s ruling

is binding on all subsequent panels unless and until it is overruled by the Supreme

Court or this Court sitting en banc. United States v. Archer, 531 F.3d 1347, 1352

(11th Cir. 2008).

      Under U.S.S.G. § 4B1.1, a defendant is a career offender if he is over the

age of 18, the instant offense is a controlled substance felony or crime of violence,

and the defendant has at least two prior felony convictions for a controlled

substance felony or crime of violence. U.S.S.G.§ 4B1.1(a). A “controlled

substance offense”

      means 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.

Id. § 4B1.2(b).

      Florida law punishes the sale, manufacture, delivery, or possession with

intent to sell, manufacture, or deliver cocaine within 1,000 feet of a church or

school as a first-degree felony. See Fla. Stat. § 893.13(e)(1). First-degree felonies

are punishable by up to 30 years’ imprisonment. Id. § 755.082(3)(b)(1).

      In Smith, we determined that a prior conviction under § 893.13 was a

“controlled substance offense” under § 4B1.2(b). United States v. Smith, 775 F.3d

1262, 1267-68 (11th Cir. 2014), cert denied, 135 S. Ct. 2825 (2015). We rejected
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the argument that it must search for the elements of the “generic” federal definition

of a “controlled substance offense” because that term was already defined in the

Sentencing Guidelines. Id. at 1267. As such, a conviction for violation of §

893.13 counted as a controlled substance offense under the Guidelines, even if it

lacked the mens rea element of federal law. Id. The appellant in that case also

argued that state crimes must be “substantially similar” to federal drug trafficking

crimes. We rejected that argument, explaining that an earlier version of the

Guidelines defined a controlled substance offense as an enumerated list of federal

drug trafficking crimes and “similar offenses.” Id. at 1268. Once the Guidelines

were amended, that analysis became unnecessary. See id. at 1267 (“The

definition[] require[s] only that the predicate offense . . ‘prohibit[s],’ U.S.S.G.

§ 4B1.2(b), certain activities related to controlled substances.” Id.

      Riley’s claim is foreclosed by the prior precedent rule and Smith. His prior

conviction under § 893.13 falls within the plain meaning of the Guidelines. See

id. at 1267–68. His conviction for possessing cocaine was a felony punishable by

up to 30 years’ imprisonment. See Fla. Stat. § 775.082(3)(b)(1). As such, under

the definition of a “controlled substance offense” in the Sentencing Guidelines,

Riley’s prior conviction was an offense under state law, punishable by a term of

imprisonment exceeding one year, and concerned the distribution, dispensing, or

the possession with intent to distribute or dispense of a controlled substance. See


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U.S.S.G. § 4B1.2(b). Because Riley’s prior conviction falls within the Guidelines’

definition, it was a predicate controlled substance offense. See Smith, 775 F.3d at

1267-68. Riley is unable to show that an error occurred, and therefore, he would

lose even if we reviewed his claim de novo. Thus, the district court correctly

found Riley’s 2011 conviction supported his career offender status, and we affirm

in this respect.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART




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