           Case: 16-17780   Date Filed: 08/29/2017   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17780
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:16-cr-60117-DTKH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

ANTHONY SWABY,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 29, 2017)

Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
              Case: 16-17780     Date Filed: 08/29/2017   Page: 2 of 3


      Anthony Swaby appeals his 120-month, below-the-guideline-range sentence,

after pleading guilty to two counts of bank robbery, in violation of 18 U.S.C. §

2113(a). On appeal, Swaby argues that he was incorrectly classified and sentenced

as a career offender. Swaby argues that his previous conviction under Fla. Stat.

§ 893.13(1), does not qualify as a controlled substance offense under U.S.S.G.

§ 4B1.2(b) because the statute does not contain a mens rea element. Although he

acknowledges that in United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014),

we held that § 893.13 qualifies as a controlled substance offense, he argues that

Smith conflicts with several Supreme Court decisions.

      We review constitutional sentencing challenges de novo, which includes the

question of whether a defendant’s prior convictions qualify as controlled substance

offenses for purposes of U.S.S.G. § 4B1.2(b). See Smith, 775 F.3d at 1265. And

“[w]e are bound by [our] prior panel decisions unless and until we overrule them

while sitting en banc, or they are overruled by the Supreme Court.” United States

v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011). In other words, “[w]e are

authorized to depart from a prior panel decision based upon an intervening

Supreme Court decision only if that decision actually overruled or conflicted with

it.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (internal

quotation marks omitted).




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      Swaby relies on Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581

(2008), Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), and

McFadden v. United States, 576 U.S. ___, 135 S. Ct. 2298 (2015) for the

proposition that Smith has been overruled. However we are not convinced that

those cases overrule or conflict with Smith. Therefore, because no Supreme Court

or en banc decision has overruled the holding from Smith, the prior panel precedent

rule bounds us to that holding. See Marte, 356 F.3d at 1344. We affirm Swaby’s

sentence.

      AFFIRMED.




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