          Case: 13-15227   Date Filed: 12/22/2014   Page: 1 of 12


                                                                    [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 13-15227
                      ________________________

                 D.C. Docket No. 1:13-cr-20314-DLG-1

UNITED STATES OF AMERICA,

                                                         Plaintiff–Appellee,

                                 versus

TRAVIS LAMONT SMITH,

                                                       Defendant–Appellant.

                      ________________________

                        Nos. 13-15133; 14-10075
                      ________________________

                 D.C. Docket No. 9:13-cr-80117-KAM-1

UNITED STATES OF AMERICA,

                                                           Plaintiff–Appellee,

                                 versus

JOSE G. NUNEZ,
a.k.a. Gordo,

                                                        Defendant–Appellant.
               Case: 13-15227       Date Filed: 12/22/2014      Page: 2 of 12


                              ________________________

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

                                   (December 22, 2014)

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and WALTER, ∗ District
Judge.

WILLIAM PRYOR, Circuit Judge:

       These consolidated appeals require us to decide whether the definitions of

“serious drug offense” under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(2)(A), and “controlled substance offense” under the Sentencing

Guidelines, U.S.S.G. § 4B1.2(b) (Nov. 2013), include crimes that do not require an

element of mens rea regarding the illicit nature of the controlled substance. Both

Travis Lamont Smith and Jose G. Nunez have prior convictions for Florida drug

crimes that have no element of mens rea with respect to the illicit nature of the

drug. In separate proceedings, Smith and Nunez pleaded guilty to federal felony

offenses and received enhanced sentences when the district courts ruled that their

prior convictions were, respectively, “serious drug offense[s],” 18 U.S.C.

§ 924(e)(2)(A), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b).

Because drug crimes without an element of mens rea can be “serious drug


∗
 Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
                                               2
              Case: 13-15227        Date Filed: 12/22/2014   Page: 3 of 12


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

U.S.S.G. § 4B1.2(b), we affirm Smith’s and Nunez’s sentences.

                               I.      BACKGROUND

      We divide the background in two parts. First, we discuss Smith’s conviction

and sentencing. Second, we discuss Nunez’s conviction and sentencing.

    A. Smith Is Convicted of Possession of a Firearm by a Convicted Felon and
                   Sentenced as an “Armed Career Criminal.”
      A grand jury indicted Smith on one count of possession of a firearm by a

convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1). Smith later pleaded guilty to

that charge, and he signed a factual proffer that he “ha[d] been convicted of [four]

prior felony narcotics violations.”

      The presentence investigation report calculated Smith’s guideline range as

151 to 188 months of imprisonment, U.S.S.G. ch. 5, pt. A, Sentencing Table, but

as an “armed career criminal,” id. § 4B1.4(a), Smith faced a mandatory minimum

sentence of 180 months of imprisonment under the Armed Career Criminal Act of

1984, 18 U.S.C. § 924(e). The district court ruled that Smith’s prior convictions for

possession of marijuana with intent to sell within 1,000 feet of a school or church,

Fla. Stat. § 893.13(1)(c)(2); sale of cocaine with intent to distribute, id.

§ 893.13(1)(a)(1); and possession of cocaine with intent to distribute, id., were

“serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A)(ii), that qualified Smith as an

“armed career criminal,” U.S.S.G. § 4B1.4(a).

                                             3
              Case: 13-15227     Date Filed: 12/22/2014    Page: 4 of 12


      Smith objected to the sentencing enhancement on the ground that it violated

his rights under the Fifth and Sixth Amendments. He argued that the Fifth

Amendment required that his prior convictions be alleged in his indictment and

that the Sixth Amendment required either proof to a jury beyond a reasonable

doubt or his admission that his prior convictions were “serious drug offense[s],” 18

U.S.C. § 924(e)(2)(A)(ii). The district court overruled Smith’s objections and

sentenced him to 180 months of imprisonment. After he filed a notice of appeal,

Smith filed a motion to reconsider on the ground that his prior convictions did not

qualify as serious drug offenses. The district court denied his motion.

   B. Nunez Is Convicted of Possession of a Firearm by a Convicted Felon and
                      Sentenced as a “Career Offender.”

      A grand jury indicted Nunez on one count of possession of a firearm by a

convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2); six counts of possession with

intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1); and one count of

possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.

§ 924(c)(1)(A). Nunez pleaded guilty to one count of each of the charged crimes.

      The presentence investigation report calculated Nunez’s guideline range as

77 to 96 months of imprisonment, U.S.S.G. ch. 5, pt. A, Sentencing Table, but as a

“career offender,” id. § 4B1.1(a), his guideline range was increased to 262 to 327

months of imprisonment, id. § 4B1.1(c)(3). The district court ruled that Nunez’s

prior state convictions for possession of marijuana with intent to sell, Fla. Stat.

                                           4
              Case: 13-15227     Date Filed: 12/22/2014   Page: 5 of 12


§ 893.13(1)(a)(2), and possession of cocaine with intent to sell, id., were

“controlled substance offense[s],” U.S.S.G. § 4B1.2(b), that qualified Nunez as a

“career offender,” id. § 4B1.1(a). The district court varied downward from the

advisory guideline range and sentenced Nunez to 228 months of imprisonment.

After Nunez filed a notice of appeal, he moved the district court to reconsider his

sentence on the ground that his prior convictions were not “controlled substance

offense[s],” id. § 4B1.2(b). The district court denied his motion.

                         II.   STANDARD OF REVIEW

       “We review [de novo] constitutional sentencing issues . . . .” United States v.

Steed, 548 F.3d 961, 978 (11th Cir. 2008).

                                III.   DISCUSSION

       The parties present two issues. First, Smith argues that the government

violated his rights under the Fifth and Sixth Amendments because his prior

convictions were not alleged in his indictment or specifically admitted by him.

Second, Smith and Nunez argue that their prior convictions for Florida drug crimes

do not qualify as “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A)(ii), and

“controlled substance offense[s],” U.S.S.G. § 4B1.2(b). We address each argument

in turn.




                                          5
                Case: 13-15227   Date Filed: 12/22/2014   Page: 6 of 12


         A. The District Court Correctly Relied on Smith’s Prior Convictions.

         Smith argues that the application of the mandatory minimum sentence, 18

U.S.C. § 924(e), violated his Fifth and Sixth Amendment rights. Smith argues that

his prior convictions cannot be used to increase his maximum possible sentence or

mandatory minimum sentence because his prior convictions were not alleged by

indictment, U.S. Const. Amend. V, and he did not specifically admit that his prior

convictions were serious drug offenses, U.S. Const. Amend. VI. Smith argues that

the Supreme Court ruled in Alleyne v. United States that all facts that trigger

mandatory minimum sentences—including the fact of a prior conviction—must be

alleged in an indictment, submitted to a jury, and proved beyond a reasonable

doubt.     U.S. , 133 S. Ct. 2151, 2155 (2013).

         Smith’s arguments fail. “[N]either the Fifth Amendment nor the Sixth

Amendment prevent[s] the district court from finding the fact of [Smith]’s prior

convictions, or using them to designate him a[n Armed Career Criminal].” United

States v. Gibson, 434 F.3d 1234, 1246 (11th Cir. 2006). Although it is ordinarily

true that all elements of a crime must be alleged by indictment and either proved

beyond a reasonable doubt or admitted by a defendant, there is an exception for

prior convictions. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.

Ct. 1219, 1232–33 (1998). The Constitution does not require that “[t]he

government . . . allege in its indictment and . . . prove beyond a reasonable doubt


                                          6
              Case: 13-15227     Date Filed: 12/22/2014   Page: 7 of 12


that [Smith] had prior convictions for a district court to use those convictions for

purposes of enhancing a sentence.” Gibson, 434 F.3d at 1246 (internal quotation

marks and citation omitted).

      Alleyne did not overrule Almendarez-Torres, and the Fifth and Sixth

Amendments do not limit the use of Smith’s prior convictions. United States v.

Harris, 741 F.3d 1245, 1250 (11th Cir. 2014). We acknowledged in Harris that

there is “some tension” between Almendarez-Torres and Alleyne, but “we are

bound to follow Almendarez-Torres unless and until the Supreme Court itself

overrules that decision.” Id. (internal quotation marks and citation omitted). The

district court correctly used Smith’s prior convictions to designate him an “armed

career criminal.” Id.

  B. Smith’s Prior Convictions Are “Serious Drug Offenses,” and Nunez’s Prior
                Convictions Are “Controlled Substance Offenses.”
      As an initial matter, the parties disagree about whether an argument raised

for the first time in a motion to reconsider a sentence is preserved for our review.

The government argues that Smith and Nunez first raised their argument that their

prior convictions were not “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A), and

“controlled substance offense[s],” U.S.S.G. § 4B1.2(b), in their motions to

reconsider their sentences. The government argues that, because Smith and Nunez

filed notices of appeal before they filed motions to reconsider their sentences, the

district courts did not have jurisdiction to grant the motions, and we should review

                                          7
              Case: 13-15227      Date Filed: 12/22/2014    Page: 8 of 12


their sentences for plain error. Smith argues that he first raised this issue at his

sentencing, and Smith and Nunez argue that, in any event, their motions to

reconsider their sentences preserved their objections and our review should be de

novo. Because we conclude that the district courts committed no error, we need not

decide which standard of review governs this issue.

      Smith and Nunez argue that their prior convictions for violations of section

893.13(1) of the Florida Statutes do not qualify as “serious drug offense[s],” 18

U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b).

Smith and Nunez rely on our decision in Donawa v. United States Attorney

General, where we were asked to decide whether section 893.13(1)(a)(2) was a

“drug trafficking aggravated felony” under the Immigration and Nationality Act of

1965, 8 U.S.C. § 1227(a). 735 F.3d 1275, 1278 (11th Cir. 2013). The Act provided

that “drug trafficking crime[s]” were “aggravated felon[ies],” 8 U.S.C.

§ 1101(a)(43)(B), and the Act broadly defined “drug trafficking crime” as “any

felony punishable under the Controlled Substances Act[,] 21 U.S.C. [§] 801 et

seq.[,] the Controlled Substances Import and Export Act[,] 21 U.S.C. [§] 951 et

seq.[,] or chapter 705 of title 46,” 18 U.S.C. § 924(c). We ruled that the “federal

analogue,” 21 U.S.C. § 841(a)(1), to the Florida statute, Fla. Stat.

§ 893.13(1)(a)(2), supplied the elements of the “generic federal definition” of

“drug trafficking crime.” Donawa, 735 F.3d at 1280–81 (internal quotation marks

                                            8
              Case: 13-15227      Date Filed: 12/22/2014    Page: 9 of 12


and citation omitted). We held that the Florida statute was not a “drug trafficking

aggravated felony” because the federal analogue included an element of mens rea

with respect to the illicit nature of the controlled substance and the Florida statute

did not. Id. at 1281. Smith and Nunez argue that the “generic” federal definitions

of “serious drug offense” and “controlled substance offense” include that same

element of mens rea required by the definition of “drug trafficking aggravated

felony.”

      Smith’s and Nunez’s arguments fail. We need not search for the elements of

“generic” definitions of “serious drug offense” and “controlled substance offense”

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

respectively. A “serious drug offense” is “an offense under State law,” punishable

by at least ten years of imprisonment, “involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance.” 18

U.S.C. § 924(e)(2)(A)(ii). And a “controlled substance offense” is any offense

under state law, punishable by more than one year of imprisonment, “that prohibits

the manufacture, 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).

      No element of mens rea with respect to the illicit nature of the controlled

substance is expressed or implied by either definition. We look to the plain

                                            9
             Case: 13-15227      Date Filed: 12/22/2014   Page: 10 of 12


language of the definitions to determine their elements, United States v. Duran,

596 F.3d 1283, 1291 (11th Cir. 2010), and we presume that Congress and the

Sentencing Commission “said what [they] meant and meant what [they] said,”

United States v. Strickland, 261 F.3d 1271, 1274 (11th Cir. 2001) (internal

quotation marks and citation omitted); see also United States v. Shannon, 631 F.3d

1187, 1190 (11th Cir. 2011). The definitions require only that the predicate offense

“involv[es],” 18 U.S.C. § 924(e)(2)(A)(ii), and “prohibit[s],” U.S.S.G. § 4B1.2(b),

certain activities related to controlled substances.

      Smith and Nunez argue that the presumption in favor of mental culpability

and the rule of lenity, Staples v. United States, 511 U.S. 600, 606, 619, 114 S. Ct.

1793, 1797, 1804 (1994), require us to imply an element of mens rea in the federal

definitions, but we disagree. The presumption in favor of mental culpability and

the rule of lenity apply to sentencing enhancements only when the text of the

statute or guideline is ambiguous. United States v. Dean, 517 F.3d 1224, 1229

(11th Cir. 2008); United States v. Richardson, 8 F.3d 769, 770 (11th Cir. 1993).

The definitions of “serious drug offense,” 18 U.S.C. § 924(e)(2)(A)(ii), and

“controlled substance offense,” U.S.S.G. § 4B1.2(b), are unambiguous.

      Nunez also argues that our precedents require us to hold that section

893.13(1) is not a controlled substance offense, but his argument fails. Nunez

argues that our holding in Young v. United States establishes that state crimes are

                                           10
             Case: 13-15227     Date Filed: 12/22/2014    Page: 11 of 12


“controlled substance offense[s],” U.S.S.G. § 4B1.2(2) (Nov. 1988), only if they

are “substantially similar” to federal drug trafficking crimes. 936 F.2d 533, 536–37

(11th Cir. 1991). Nunez maintains that, because we held in Donawa that section

893.13(1)(a)(2) is not a “drug trafficking crime,” 735 F.3d at 1281, section

893.13(1) cannot be a controlled substance offense. But Nunez’s reliance on Young

is misplaced because the definition of “controlled substance offense” that we

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

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

decided Young, “controlled substance offense” was defined as an enumerated list

of federal drug trafficking crimes and “similar offenses.” U.S.S.G. § 4B1.2(2)

(Nov. 1988). But the definition of “controlled substance offense,” in this appeal,

does not reference drug trafficking or a class of “similar offenses.” U.S.S.G.

§ 4B1.2(b) (Nov. 2013).

      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).

Neither definition requires that a predicate state offense includes an element of

mens rea with respect to the illicit nature of the controlled substance. The district

courts correctly sentenced Smith as an “armed career criminal,” U.S.S.G.

§ 4B1.4(a), and Nunez as a “career offender,” id. § 4B1.1(a).




                                          11
     Case: 13-15227    Date Filed: 12/22/2014   Page: 12 of 12


                      IV.   CONCLUSION

We AFFIRM Smith’s and Nunez’s sentences.




                                12
