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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13107
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:17-cr-00235-GAP-TBS-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

versus

JOHNATHAN SCOTT KEEN,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 29, 2020)

Before MARTIN, ROSENBAUM, and TJOFLAT, Circuit Judges.

PER CURIAM:

                                    I.
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      Johnathan Keen was indicted for one count of conspiring to distribute and to

possess with the intent to distribute 50 grams or more of a substance containing a

detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(B)

and 846. After the Government notified him that he was subject to an enhanced

statutory mandatory minimum sentence because of his four prior convictions for

felony drug offenses, Keen pleaded guilty.

      Keen’s Presentence Investigation Report (“PSR”) identified him has a career

offender under U.S.S.G. § 4B1.1, and his sentencing range was ultimately

calculated to be 262 to 327 months. At the sentencing hearing, Keen argued that

he was not a career offender. He asserted that he did not have two felony drug

convictions because his two convictions were not separated by an intervening

arrest—he was already in custody when served with the second arrest warrant.

Noting the absence of precedent on this issue, the District Court overruled his

objection. However, the Court departed downward from Keen’s original

Guidelines sentencing range, which resulted in a new Guidelines range of 151 to

188 months’ imprisonment. Then, the Court varied downward from that range

based on the parties’ arguments, the 18 U.S.C. § 3553(a) factors, and the need to

avoid disparity in sentencing, and it imposed the statutory mandatory minimum

sentence of 120 months. Keen renewed his objection to the career offender

enhancement, and now appeals.


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                                                 II.

      Keen raises three issues on appeal.

      First, for the first time, Keen argues that the District Court erred because,

under the First Step Act of 2018, 1 his prior felony drug convictions did not qualify

as “serious drug felonies,” and therefore he was not subject to a 120-month

mandatory minimum sentence.

      Second, for the first time, Keen argues that the District Court erred because

his prior state felony drug convictions were not “felony drug offenses” within the

meaning of 21 U.S.C. § 841(b)(1)(B). According to Keen, his prior convictions do

not qualify because the applicable Florida drug trafficking statute—Florida Statute

§ 893.13—lacks a mens rea element.

      Third, Keen argues that his sentence is procedurally unreasonable because

the Court erroneously determined that he was subject to a career criminal offender

enhancement.

      We disagree with Keen on all three grounds. Therefore, we affirm.

                                                 III.

      For the first time in this direct appeal, Keen argues that the District Court

erred by finding that he was subject to a 120-month mandatory minimum sentence




      1
          Pub. L. No. 115-391, 132 Stat. 5194.
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because, under the First Step Act of 2018, his prior felony drug convictions do not

qualify as “serious drug felonies.”

        We review this claim for plain error because Keen did not raise the issue

during sentencing. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.

2014). To prevail on plain error review, a defendant must show (1) an error, (2)

that is plain, (3) that affects his substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. We find no

such error.

        Before Congress enacted the First Step Act of 2018, a defendant who

violated § 841(b)(1)(B) was subject to a 120-month mandatory minimum sentence

if he had a prior conviction for a “felony drug offense” that had become final

before the § 841 violation. The First Step Act, which was enacted on December

21, 2018, changed this statutory language. Now, a defendant is subject to this 120-

month mandatory minimum sentence if his prior conviction was for a “serious drug

felony” or “serious violent felony,” instead of a “felony drug offense.”

Importantly, however, this change only applies to an offense that was committed

before December 21, 2018, “if a sentence for the offense has not been imposed as

of such date.” First Step Act of 2018, Pub. L. No. 115-391, § 401(c), 132 Stat. at

5221.




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      Here, there was no plain error because the First Step Act’s changes to

§ 841(b)(1)(B) do not apply to defendants who were sentenced before December

21, 2018, and Keen was sentenced on July 9, 2018.

                                              IV.

      Next, for the first time in this direct appeal, Keen argues his prior felony

drug convictions were not “felony drug offenses” within the meaning of

§ 841(b)(1)(B) because the applicable Florida drug trafficking statute—Florida

Statute § 893.13—lacks a mens rea element.

      We review this claim for plain error because Keen did not raise the issue

during sentencing. See Vandergrift, 754 F.3d at 1307. We find no such error.

      In Burgess v. United States, 553 U.S. 124, 128 S. Ct. 1572 (2008), the

Supreme Court held that “[t]he term ‘felony drug offense’ contained in

§ 841(b)(1)(A)’s provision for a 20-year minimum sentence . . . is defined

exclusively by [21 U.S.C.] § 802(44).” Id. at 126, 128 S. Ct. at 1575. Section

802(44) defines the term “felony drug offense” as “an offense that is punishable by

imprisonment for more than one year under any law of the United States or of a

State or foreign country that prohibits or restricts conduct relating to narcotic

drugs.”2 Id.




      2
          Cocaine is a narcotic drug. 21 U.S.C. § 802(17)(D).
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       Here, we see no reason why “felony drug offense” would be defined

differently in § 841(b)(1)(A) and § 841(b)(1)(B); both sections use that same

phrase, and the surrounding statutory language is nearly identical. Therefore,

under Burgess, the fact that Florida Statute § 893.13 lacks a mens rea element is

irrelevant because Keen was convicted of drug offenses that were “punishable by

imprisonment for more than one year” under Florida law. See Burgess, 553 U.S. at

126, 128 S. Ct. at 1575. As such, his prior convictions qualify as “felony drug

offenses” under § 841(b)(1)(B).3 Accord United States v. Howard, 767 F. App’x

779, 786 (11th Cir. 2019) (finding that § 841(b)(1)(B)’s mandatory minimum was

properly imposed because the defendant’s previous convictions for violating

Florida Statute §§ 893.13(1)(a)(1) and 893.13(6)(a) were “felony drug offenses”).

Accordingly, the District Court did not plainly err by imposing § 841(b)(1)(B)’s

mandatory minimum sentence.

                                               V.

       Finally, Keen argues that his sentence is procedurally unreasonable because

the District Court erroneously determined that he was a career offender when it




       3
         Our analysis here applies only for defendants convicted of violating § 841(b)(1)(B) and
sentenced before December 21, 2018. As discussed in Part II., for all other defendants, the
relevant inquiry would be whether their prior convictions qualify as “serious drug felon[ies]” or
“serious violent felon[ies]” because of the changes made by the First Step Act.
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calculated his Guidelines sentencing range. The Government counters that Keen

waived his right to appeal on this ground in his plea agreement.

      Even if Keen did not waive his right to appeal the District Court’s

Guidelines calculation, his claim would still fail. The District Court properly

imposed the statutory mandatory minimum sentence under § 841(b)(1)(B), which

was greater than Keen’s Guidelines range. Therefore, any error regarding Keen’s

status as a career offender was harmless. See United States v. Chirino-Alvarez,

615 F.3d 1344, 1346 (11th Cir. 2010).

                                         VI.

      For the foregoing reasons, we affirm.

      AFFIRMED.




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