            Case: 15-12052   Date Filed: 12/03/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12052
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:14-cr-10028-JLK-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus


KEYONBIE NASHAMBA HUMPHREY,

                                                          Defendant-Appellant.

                       ________________________

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

                             (December 3, 2015)

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

PER CURIAM:
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       Keyonbie Nashamba Humphrey appeals his 120-month sentence, imposed

below his advisory guidelines range,1 after pleading guilty to a single count of

possessing with intent to distribute 28 grams or more of cocaine base and a

detectable amount of marijuana.

       On appeal, Humphrey argues that the district court erred in determining that

his two prior drug convictions under Fla. Stat. § 893.13(1) qualified him as a career

offender under U.S.S.G. § 4B1.1(a).2 Although he concedes that this Court

previously determined, in United States v. Smith, 775 F.3d 1262 (11th Cir. 2014),

cert. denied, 135 S. Ct. 2827 (2015), that a violation of Fla. Stat. § 893.13(1)

qualifies as a “controlled substance offense” for purposes of the Sentencing

Guidelines’ career offender enhancement, Humphrey argues, for the purpose of

preserving his appellate rights, that Smith was incorrect. 3

       We review de novo the district court’s 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). This Court is “bound to follow a prior binding precedent

       1
        Humphrey’s offense level was 31, and his criminal history category was VI, yielding an
advisory guidelines range of 188 to 235 months.
       2
         One felony drug conviction was in 2004, and the other in 2007. The government
contended that Humphrey also had a third prior qualifying conviction, namely, his 2003 drug
conviction, but that prior conviction is not at issue in this appeal.
       3
         Humphrey actually argues that neither of his prior convictions should qualify as a
“serious drug offense,” but he is quoting language from the Armed Career Criminal Act, 18
U.S.C. § 924(e), which is not relevant in this case. We presume Humphrey means to argue that
neither of his prior convictions should qualify as a “controlled substance offense” under U.S.S.G.
§ 4B1.1(a).
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unless and until it is overruled by this court en banc or by the Supreme Court.”

United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quotation

omitted).

      A defendant is a career offender if, inter alia, he has at least two prior felony

convictions for a controlled substance offense. U.S.S.G. § 4B1.1(a). A “controlled

substance offense” is “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).

      Under Florida law, it is a crime to “sell, manufacture, or deliver, or possess

with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat.

§ 893.13(1)(a). Where the offense involves cocaine, it is a second-degree felony

and carries a 15-year maximum term of imprisonment. Id. § 893.13(1)(a)(1),

cross-referencing id. §§ 775.082(3)(d), 893.03(2)(a)(4). In 2002, the Florida

legislature eliminated knowledge of the illicit nature of a substance as an element

of controlled substance offenses under Fla. Stat. § 893.13(1). Id. § 893.101(2).

Subsequently, this Court has determined that a prior conviction under Fla. Stat.

§ 893.13(1) is a “controlled substance offense” under U.S.S.G. § 4B1.2(b) and,


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therefore, qualifies as a predicate felony for the purposes of the career offender

enhancement under U.S.S.G. § 4B1.1(a). Smith, 775 F.3d at 1267-68. “No

element of mens rea with respect to the illicit nature of the controlled substance is

expressed or implied” in the Guidelines’ definition of a controlled substance

offense. Id. at 1267.

      The district court did not err in determining that Humphrey’s prior

convictions under Fla. Stat. § 893.13(1) were controlled substance offenses for

purposes of the career offender enhancement. See id. at 1267-68. As Humphrey

concedes, his argument on appeal is foreclosed by our decision in Smith.

      AFFIRMED.




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