                                                                 [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                               No. 11-11100                      AUGUST 29, 2011
                           Non-Argument Calendar                    JOHN LEY
                                                                     CLERK
                         ________________________

                    D.C. Docket No. 9:10-cr-80140-DMM-1

UNITED STATES OF AMERICA,


                                  llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,


                                     versus


AGUSTIN NUNEZ,
a.k.a. Agustin Nunez-Cortez,


                               llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                         ________________________

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

                               (August 29, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Agustin Nunez appeals his 48-month sentence, imposed after pleading

guilty to illegal re-entry after removal. On appeal, Nunez argues that the district

court erred when it included a 16-level enhancement for a 2006 offense for

trafficking cocaine under Fla. Stat. Ann. § 893.135. After a thorough review of

the record, we affirm.

                                          I.

      In 2010, Nunez pleaded guilty to illegal re-entry, in violation of 8 U.S.C.

1326(a) and (b)(2). Nunez had been removed from the United States on two other

occasions–in one instance after he was convicted of a felony in Florida for

trafficking 28 grams or more of cocaine. Nunez was assigned a criminal history

category of III and an offense level of 21, including a 16-level enhancement for

the drug offense, which placed him within the guidelines range of 46 to 57

months’ imprisonment.

      Nunez objected to the enhancement, arguing that his 2006 conviction did

not qualify as a drug trafficking offense, under U.S.S.G. § 2L1.2(b)(1)(a)(i).

Nunez specifically argued that Fla. Stat. Ann. § 893.135 did not include the

requisite “intent to distribute” element required to qualify it as a “drug trafficking

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offense” under 2L1.2. The district court rejected this argument, without further

explanation, and sentenced Nunez to 48 months’ imprisonment and 3 years of

supervised release. Nunez appealed.

                                              II.

       We review de novo whether a defendant’s prior conviction qualifies as a

“drug trafficking offense” under § 2L1.2(b)(1)(A). United States v.

Madera-Madera, 333 F.3d 1228, 1231 n.2 (11th Cir. 2003). “Federal law, not

state law, controls the application of the Sentencing Guidelines.” Id.

                                             III.

       Nunez argues that the district court erred when it applied a 16-level

enhancement to his offense because his 2006 conviction does not qualify as a

“drug trafficking offense” under Fla. Stat. § 893.135. Specifically, he contends

that the Florida statute, despite its “trafficking” label, does not meet the federal

definition of “drug trafficking offense.” The government responds that Nunez’s

argument is foreclosed by United States v. Madera-Madera, 333 F.3d 1228 (11th

Cir. 2003).1 We agree.



       1
        Although Nunez cites to Fifth, Sixth, Ninth and Tenth Circuit decisions, Madera-
Madera remains binding precedent in this circuit, which we are bound to follow unless it is
overruled en banc or by the Supreme Court of the United States. United States v. Hogan, 986
F.3d 1364, 1369 (11th Cir. 1993).

                                               3
      “The United States Code increases the authorized maximum penalty to 20

years’ imprisonment if the illegally reentering alien’s deportation followed an

‘aggravated felony’ conviction.” 8 U.S.C. § 1326(b)(2). A 16-level enhancement

is warranted if the alien has been previously deported after a felony drug

trafficking conviction for which the sentence imposed exceeded 13 months.

Madera-Madera, 333 F.3d at 1229.

      For the purposes of this enhancement, the Guidelines define a drug

trafficking offense as “an offense under federal, state, or local law that prohibits

the manufacture, import, export, distribution, or dispensing of, or offer to sell 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.” U.S.S.G. § 2L1.2, cmnt. (1(B)(iv)) (emphasis added).

The Florida statute under which Nunez was convicted provides that:

      Any person who knowingly sells, purchases, manufactures, delivers, or
      brings into this state, or who is knowingly in actual or constructive
      possession of, 28 grams or more of cocaine . . . or of any mixture
      containing cocaine, but less than 150 kilograms of cocaine or any such
      mixture, commits a felony of the first degree, which felony shall be
      known as “trafficking in cocaine.”

Fla. Stat. Ann. § 893.135(1)(b).




                                           4
      Nunez argues that the district court erred because the “intent to distribute”

element present in the federal statue is absent from the Florida statute. In Madera-

Madera, this court addressed a similar argument, determining that a defendant

“must be in possession of a significant quantity of drugs before Georgia deems the

offense drug ‘trafficking.’” 333 F.3d at 1232 (emphasis in the original). Although

there is no specific “intent to distribute” in the Georgia statute, this court

concluded that “drug trafficking is a more serious offense than either simple

possession or possession with the intent to distribute” and, thus, the statute

“necessarily infers an intent to distribute once a defendant possesses a certain

amount of drugs.” Id.

      Although a Georgia drug-trafficking statute was at issue above, in United

States v. James, 430 F.3d 1150, 1153-56 (11th Cir. 2005), we determined that a

defendant’s prior conviction “for trafficking in cocaine by possession of between

200 and 400 grams of cocaine,” in violation of Florida’s drug-trafficking statute

was a “serious drug offense” for purposes of the Armed Career Criminal Act, 18

U.S.C. § 924(e)(2)(A)(ii). We concluded that Florida’s three-tiered system was

“not materially distinguishable” from Georgia’s system, and, thus,

Madera-Madera dictated that James’s offense involved an intent to distribute

because “Florida’s drug trafficking statute necessarily [implies] an intent to

                                           5
distribute once a defendant possesses 28 grams or more [of cocaine].” James, 430

F.3d at 1155.

      Here, Nunez’s objection to the 16-level enhancement to his base offense

level is foreclosed by Madera-Madera. The district court properly concluded that

Nunez’s 2006 conviction under § 893.135(1)(b) was a proper predicate for the

“drug trafficking” enhancement under § 2L1.2(b)(1)(A)(i), despite the absence of

a separate “intent to distribute” clause in the Florida statute, because Nunez

possessed a quantity of cocaine from which an intent to distribute could be

inferred. Accordingly, we affirm.

      AFFIRMED.




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