           Case: 14-11556   Date Filed: 03/27/2015   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11556
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-cr-20624-UU-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ANDREW WILLIAMS,

                                                         Defendant-Appellant.

                      ________________________

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

                            (March 27, 2015)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Andrew Williams appeals his sentence of 180 months of imprisonment for

possession of a firearm and ammunition by a convicted felon. On appeal, Williams

contends that the court unlawfully enhanced his sentence by ruling that his prior

state drug convictions under Fla. Stat. § 893.13(1) were “serious drug offense[s],”

18 U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],” United States

Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.2(b).          Because this Court

recently held in United States v. Smith, __ F. 3d __, No. 13-15227, 2014 WL

7250963, at *5 (11th Cir. Dec. 22, 2014), that “Section 893.13(1) of the Florida

Statutes is both a ‘serious drug offense,’ 18 U.S.C. § 924(e)(2)(A), and a

‘controlled substance offense,’ U.S.S.G. § 4B1.2(b),” we affirm.

                                         I.

      A federal grand jury indicted Williams on one count of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).

Williams pled guilty without the benefit of a written plea agreement.

      The presentence investigation report (“PSR”) describes three prior Florida

state-court convictions for “possession with intent to sell, manufacture or deliver

cocaine” and one Florida state-court conviction for resisting an officer with

violence. Based on these prior convictions, the probation officer initially assigned

Williams a base offense level of 24, pursuant to U.S.S.G. §§ 2K2.1(a)(2) and

4B1.2(b), because Williams committed the instant offense after sustaining at least


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two felony convictions of either a crime of violence or a controlled substance

offense. But since Williams also qualified as an “armed career criminal” under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on these same

convictions, the PSR instead applied a base offense level of 33 under U.S.S.G.

§ 4B1.4(b)(3)(B).

      Williams’s resulting advisory guideline range was 188 to 235 months of

imprisonment, and as an “armed career criminal” he was subject to a mandatory

minimum sentence of 15 years of imprisonment.           See 18 U.S.C. § 924(e)(1).

Williams objected to the enhancements based on his prior convictions, contending

that the Florida drug convictions under Fla. Stat. § 893.13(1) were not qualifying

predicate offenses under either the ACCA or the Sentencing Guidelines because

the offenses did not require proof of a mens rea as to the illicit nature of the

controlled substance.

      At sentencing, the district court overruled Williams’s objections and

imposed a sentence of 180 months of imprisonment, noting that the length of the

sentence was “outrageous” but was what the law required. The court stated that it

would have imposed a 71-month sentence in the absence of the statutory minimum.

This appeal followed.

                                       II.




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      “We review de novo whether a prior conviction is a serious drug offense

within the meaning of the ACCA.” United States v. Robinson, 583 F.3d 1292,

1294 (11th Cir. 2009). Likewise, we review de novo whether a prior conviction is

a “controlled substance offense” under § 4B1.2(b). United States v. Frazier, 89

F.3d 1501, 1505 (11th Cir. 1996).

                                        III.

      Under the ACCA, an individual convicted under 18 U.S.C. § 922(g) is

subject to a mandatory minimum 15-year sentence if he has three previous federal

or state convictions “for a violent felony or a serious drug offense.” 18 U.S.C.

§ 924(e)(1). The ACCA defines “serious drug offense,” in pertinent part, as “an

offense under State law, involving manufacturing, distributing, or possessing with

intent to manufacture or distribute, a controlled substance . . . , for which a

maximum term of imprisonment of ten years or more is prescribed by law.” 18

U.S.C. § 924(e)(2)(A)(ii).

      Under § 2K2.1(a)(2) of the Sentencing Guidelines, a higher base offense

level applies “if the defendant committed any part of the instant offense subsequent

to sustaining at least two felony convictions of either a crime of violence or a

controlled substance offense.”      The Guidelines define “controlled substance

offense,” in turn, as “an offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that prohibits the manufacture,


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import, export, distribution, or dispensing of a controlled substance . . . or the

possession of a controlled substance . . . with intent to manufacture, import, export,

distribute, or dispense.” U.S.S.G. § 4B1.2(b).

      Florida law provides that 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 carrying a 15-year maximum term of imprisonment. Id. §§ 893.13(1)(a)(1),

893.03(2)(a)(4), 775.082(3)(d).      In 2002, the Florida legislature amended

§ 893.13(1)(a) by eliminating knowledge of the illicit nature of a substance as an

element of controlled substance offenses. Id. § 893.101(1)-(2); see State v. Adkins,

96 So. 3d 412, 415-16, 423 (Fla. 2012) (upholding the constitutionality of the law).

Lack of knowledge is now an affirmative defense. Fla. Stat. § 893.101(2).

      Williams argues that his prior cocaine convictions under Fla. Stat.

§ 893.13(1) were not “serious drug offense[s]” or “controlled substance offense[s]”

because § 893.13 does not require proof of the defendant’s knowledge of the illicit

nature of the substance. Relying primarily on our opinions in Donawa v. U.S.

Attorney General, 735 F.3d 1275 (11th Cir. 2013), and Young v. United States, 936

F.2d 533 (11th Cir. 1991), he argues that mens rea is an implied, essential element

of any qualifying crime under the ACCA or the Sentencing Guidelines. He further




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contends that the rule of lenity1 and the presumption in favor of mental culpability

require that these provisions be construed in his favor.

       In Donawa, we held that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla.

Stat. § 893.101, was not a “drug trafficking crime,” as defined 18 U.S.C.

§ 924(c)(2), and therefore was not a “drug trafficking aggravated felony” for

purposes of 8 U.S.C. §§ 1227(a) and 1101(a)(43)(B). 735 F.3d at 1279-82. Using

the categorical approach, pursuant to which we look “only to the fact of conviction

and the statutory definition of the offense,” we asked whether “the state statute

defining the crime of conviction categorically fits within the generic federal

definition of a corresponding aggravated felony.” Id. at 1280 (quoting Moncrieffe

v. Holder,__ U.S. __, __, 133 S. Ct. 1678, 1684 (2013) (quotation marks omitted)).

Because the federal analogue, 21 U.S.C. § 841(a)(1) 2, to the Florida controlled

substance offense “requires the government to establish, beyond a reasonable

doubt and without exception, that the defendant had knowledge of the nature of the

substance in his possession,” but Fla. Stat. § 893.13(1)(a)(2) does not, we held

“that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, does not




       1
         “The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the
defendants subjected to them.” United States v. Santos, 553 U.S. 507, 514, 128 S. Ct. 2020,
2025 (2008).
       2
           Section 924(c)(2) defines the term “drug trafficking crime” in reference to federal
controlled substances provisions, including 21 U.S.C. § 841. See 18 U.S.C. § 924(c)(2).
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qualify as a drug trafficking aggravated felony under the categorical approach.”

Id. at 1281-83.

      Similarly, in Young, we held that state crimes were “controlled substance

offense[s]” only if they were “substantially similar” to federal drug trafficking

crimes. 936 F.2d at 536-38. For purposes of our decision in Young, the Guidelines

defined a “controlled substance offense” as “an offense identified in 21 U.S.C. §§

841, 845b, 856, 952(a), 955, 955a, 959, and similar offenses.” Id. at 536; see

U.S.S.G. § 4B1.2(2) (Nov. 1988). That definition was amended in 1989. See

Young, 936 F.2d at 536 n.3.

      After this appeal was fully briefed, this Court decided Smith, resolving the

two issues currently before us. Specifically, we addressed whether the definitions

of “serious drug offense” under 18 U.S.C. § 924(e)(2)(A) and “controlled

substance offense” under U.S.S.G. § 4B1.2(b) include “crimes that do not require

an element of mens rea regarding the illicit nature of the controlled substance.”

Smith, 2014 WL 7250963, at *1.         After considering and rejecting the same

arguments raised in this appeal, we held that “Section 893.13(1) of the Florida

Statutes is both a ‘serious drug offense,’ 18 U.S.C. § 924(e)(2)(A), and a

‘controlled substance offense,’ U.S.S.G. § 4B1.2(b).” Id. at *3-5.

      In reaching that holding, we explained that the defendants’ reliance on

Donawa was unavailing, stating, “We need not search for the elements of ‘generic’


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definitions of ‘serious drug offense’ and ‘controlled substance offense’ because

these terms are defined by a federal statute and the Sentencing Guidelines,

respectively.” Id. at *4. Looking to the plain language of the definitions in 18

U.S.C. § 924(e)(2)(A) and U.S.S.G. § 4B1.2(b)(2), we concluded that neither

definition expressed or implied an “element of mens rea with respect to the illicit

nature of the controlled substance.” Id. And “we presume that Congress and the

Sentencing Commission said what they meant and meant what they said.” Id.

(internal quotation marks and brackets omitted).

      Finding the relevant definitions “unambiguous,” we also rejected the

defendants’ arguments based on the presumption in favor of mental culpability and

the rule of lenity. Id. Furthermore, we explained that our holding in Young did not

control because “the definition of ‘controlled substance offense’ that we

interpreted in Young is distinct from the definition at issue in this appeal.” Id.

Compare U.S.S.G. § 4B1.2(2) (Nov. 1988), with U.S.S.G. § 4B1.2(b) (Nov. 2013).

      In view of this Court’s decision in Smith, the district court correctly

concluded that Williams’s prior convictions under Fla. Stat. § 893.13(1) qualified

as both “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A), and “controlled

substance offense[s],” U.S.S.G. § 4B1.2(b).        Therefore, we affirm Williams’s

sentence.




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AFFIRMED. 3




3
    Williams’s “Motion to File Reply Brief Out of Time” is GRANTED.
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