           Case: 14-14044   Date Filed: 09/21/2016   Page: 1 of 21


                                                                     [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14044
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:14-cr-00055-AKK-TMP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

NAKEY DEMETRUIS WHITE,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (September 21, 2016)

Before MARCUS, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant pled guilty to one count of possessing a firearm as a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). Based on his prior Alabama

convictions for robbery, first-degree possession of marijuana, and trafficking in

cocaine, Defendant was sentenced under the Armed Career Criminal Act

(“ACCA”) to serve 180 months in prison. On appeal, Defendant argues that he

should not have been sentenced under the ACCA because neither of his drug

offenses is a valid ACCA predicate. Because this argument is foreclosed by

controlling precedent, Defendant’s sentence must be affirmed.

                                 BACKGROUND
I.    Factual Background

      On September 18, 2013, officers from the Birmingham Police Department

made a routine traffic stop having observed a seatbelt violation. Defendant was in

the front passenger seat of the car that was stopped. The officers found a gun

during the stop, and Defendant admitted the gun was his. A record check indicated

that the gun was stolen, and a criminal history check revealed an outstanding

warrant for Defendant’s arrest, as well as numerous prior felony convictions.

II.   Procedural History

      Defendant pled guilty to one count of possessing a firearm as a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). Citing Defendant’s prior Alabama




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convictions for first-degree possession of marijuana and trafficking in cocaine,1 the

Presentence Report (“PSR”) assigned Defendant a base offense level of 24 under

United States Sentencing Guidelines § 2K2.1(a)(2). Two points were added

pursuant to U.S.S.G. § 2K2.1(b)(4)(A) because the gun found in Defendant’s

possession was stolen, resulting in an adjusted offense level of 26. Although

Defendant pled guilty, the PSR did not recommend a downward adjustment for

acceptance of responsibility because while on pretrial release, Defendant had been

arrested on a domestic violence charge and had also provided a urine sample that

reflected his use of a controlled substance.

       The PSR further recommended that Defendant be sentenced as an armed

career criminal under the ACCA based on his prior violent felony and drug

convictions. According to the PSR, Defendant’s marijuana and cocaine trafficking

convictions qualified as serious drug offenses under the ACCA. Defendant also

had a prior Alabama robbery conviction, which the PSR classified as a violent

felony. Applying the ACCA enhancement, the PSR assigned Defendant a total

offense level of 33 pursuant to U.S.S.G. § 4B1.4(b)(3)(B), yielding a guidelines

range of 188 to 235 months and a mandatory minimum of 180 months in prison.

       In written objections to the PSR, Defendant argued that a downward


1
  Defendant had pled guilty to possession of marijuana “for other than personal use” in violation
of Ala. Code § 13A-12-213 in 2005. He had pled guilty to cocaine trafficking in violation of
Ala. Code § 13A-12-231 in 2007.
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adjustment for acceptance of responsibility was warranted, given his guilty plea

and his admission at the time of arrest to possessing the gun. Defendant also

objected to the ACCA enhancement. He conceded that his robbery conviction

qualified as a violent felony, 2 but argued that his marijuana and cocaine trafficking

convictions were not serious drug offenses as defined by the ACCA. Specifically,

Defendant argued that both drug offenses were defined by Alabama law to cover

simple possession, and that neither of the offenses necessarily involved the

manufacture or distribution of, or the intent to manufacture or distribute, a

controlled substance, as required by the ACCA.

       The district court sustained Defendant’s objection in part as to the

acceptance of responsibility issue, applied a two-level reduction, and adjusted his

guidelines range accordingly. Citing controlling precedent from this Court, the

district court overruled Defendant’s ACCA objections and found that Defendant

had three qualifying predicates, including the robbery, first-degree possession of

marijuana, and cocaine trafficking convictions. The court sentenced Defendant to

2
  Defendant was convicted in 2001 of second degree robbery in violation of Ala. Code § 13A-8-
42. That statute defines second degree robbery to include the following elements: (1) the
commission of a theft, (2) during which the defendant “[u]ses force against the person of the
owner or any person present with intent to overcome his physical resistance or physical power of
resistance” or “[t]hreatens the imminent use of force against the person of the owner or any
person present with intent to compel acquiescence to the taking of or escaping with the property”
and (3) while the defendant is “aided by another person actually present.” Ala. Code §§ 13A-8-
42, 13A-8-43. As noted, Defendant conceded below that his robbery conviction is an ACCA
predicate. He does not argue otherwise on appeal. See 18 U.S.C. § 924(e)(2)(B)(i) (defining
“violent felony” to include crimes that have “as an element the use, attempted use, or threatened
use of physical force against the person of another”).
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the mandatory minimum term of 180 months in prison, followed by five years of

supervised release. Defendant argues on appeal that the district court should not

have applied the ACCA enhancement because neither of his drug convictions

qualified as a serious drug offense.

                                   DISCUSSION

I.    Standard of Review

      We review de novo whether a conviction qualifies as a serious drug offense

under the ACCA. United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir.

2009). In conducting our review, “we are bound to follow a prior binding

precedent ‘unless and until it is overruled by this court en banc or by the Supreme

Court.’” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)

(quoting United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)).

II.   The ACCA

      The ACCA mandates a 15-year minimum sentence for a defendant who has

three prior convictions for a violent felony or a serious drug offense and who is

convicted of violating 18 U.S.C. § 922(g). 18 U.S.C. § 924(e)(1). The term

“serious drug offense” is defined by the ACCA to include “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




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imprisonment of ten years or more is prescribed by law.” 18 U.S.C.

§ 924(e)(2)(A)(ii).

       In determining whether a state conviction qualifies as a predicate under the

ACCA, we follow what is described as a “categorical approach.” Robinson, 583

F.3d at 1295. Under this approach, we are concerned only with the fact of the

conviction and the statutory definition of the offense, rather than with the particular

facts of the defendant’s crime. Id. As applied to this case, the categorical

approach requires us to determine whether first-degree possession of marijuana

and cocaine trafficking, as those crimes are defined by Alabama law, fall within

the definition of a serious drug offense set forth in the ACCA. See United States v.

Smith, 775 F.3d 1262, 1267 (11th Cir. 2014) (explaining that we look to the plain

language of the ACCA’s definition of the term “serious drug offense” to determine

the elements of such an offense), cert. denied, 135 S. Ct. 2827 (2015).

       When a statute covers some conduct that falls within, and other conduct that

is broader than, a predicate offense as defined by the ACCA and when that statute

is divisible,3 we may use a modified categorical approach to determine whether a

defendant’s prior conviction qualifies. See Descamps v. United States, 133 S. Ct.

2276, 2281–82 (2013). Under the modified categorical approach, we look to a

3
   A divisible statute “sets out one or more elements of the offense in the alternative.” Descamps
v. United States, 133 S. Ct. 2276, 2281 (2013). See also Mathis v. United States, 136 S. Ct.
2243, 2249 (2016) (clarifying that a statute enumerating “various factual means of committing a
single element” is not divisible).
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limited class of documents, such as the indictment and jury instructions, to

determine which alternative element was the basis of the defendant’s conviction.

Id. at 2281. We then consider whether that element is encompassed by the ACCA

predicate offense. Id.

III.   Defendant’s Marijuana Conviction

       Section 13A-12-213(a) of the Alabama Code provides that a person is guilty

of first-degree possession of marijuana if:

       (1)    He or she possesses marihuana for other than personal use; or

       (2)    He or she possesses marihuana for his or her personal use only after
              having been previously convicted of unlawful possession of
              marihuana in the second degree or unlawful possession of marihuana
              for his or her personal use only.

Ala. Code § 13A-12-213(a).4 It is undisputed that Defendant was convicted of

first-degree possession of marijuana “for other than personal use” under § 13A-12-

213(a)(1).5 Defendant concedes that the conviction meets the ACCA’s

requirement that it be punishable by a maximum term of at least ten years.6 But he


4
  The Alabama Code refers to marijuana as “marihuana” and “cannabis.” See Ala. Code
§§ 13A-12-213(a), 13A-12-231(1). We use the term “marijuana” except when directly quoting
the code or Alabama case law.
5
  Of note, § 13A-12-213(a) is divisible in that it alternatively criminalizes (1) possession of
marijuana for other than personal use and (2) possession of marijuana for personal use after a
prior qualifying conviction. See Descamps, 133 S. Ct. at 2283–85. The second provision is not
at issue here because the parties agree that Defendant was convicted under § 13A-12-213(a)(1).
6
  First-degree possession of marijuana for other than personal use is a Class C felony, which
carries a maximum sentence of ten years and a minimum sentence of one year and one day. Ala.
Code §§ 13A-12-213(b), 13A-5-6(a)(3).
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argues that it is not a serious drug offense because the Alabama statute does not

expressly require “manufacturing, distributing, or possessing with intent” to do

either. See 18 U.S.C. § 924(e)(2)(A)(ii).

      We rejected Defendant’s argument in United States v. Robinson, 583 F.3d

1292, 1296–97 (11th Cir. 2009). As we explained in Robinson, possession of

marijuana “for someone else’s use” necessarily involves possession “with the

intent to distribute” it to another person. Id. at 1296. See also 21 U.S.C. § 802(11)

(defining the term “distribute” for purposes of federal drug laws to mean

“deliver”). Consequently, we held that a conviction for possession of marijuana

for other than personal use under § 13A-12-213(a)(1) qualifies as a serious drug

offense under the ACCA. Id. at 1296–97.

      Defendant argues that Robinson is wrong and that the conduct made criminal

by § 13A-12-213(a)(1) falls outside of the ACCA’s definition of a serious drug

offense because, in theory, a person could violate the statute by jointly possessing

marijuana with another person or by possessing it with intent to administer or

dispense it, rather than with intent to distribute it. Defendant, however, does not

explain why jointly possessing marijuana “for other than personal use” would not

also necessarily involve an intent to distribute or deliver it to another person. As to

his argument that an individual could violate the statute by possessing marijuana

with intent to administer or dispense it, he does not cite any authority to suggest


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that § 13A-12-213(a)(1) has ever been applied in this hypothetical situation. See

Moncrieffe v. Holder, 133 S. Ct. 1678, 1685 (2013) (“[T]here must be ‘a realistic

probability, not a theoretical possibility, that the State would apply its statute to

conduct that falls outside the generic definition of a crime.’” (quoting Gonzalez v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007))); United States v. Teran-Salas, 767

F.3d 453, 460–62 (5th Cir. 2014) (rejecting a similar argument where the

defendant failed to show a realistic probability that the statute at issue had been

applied in an “administering” situation), cert. denied, 135 S. Ct. 1892 (2015).

Rather, the case law indicates that our interpretation of § 13A-12-213(a)(1) in

Robinson is consistent with that of the Alabama courts. See McWhorter v. State,

588 So. 2d 951, 954 (Ala. Crim. App. 1991) (reversing a defendant’s conviction

under § 13A-12-213(a)(1) where there was no evidence that his marijuana growing

room was part of a distribution operation); Harris v. State, 594 So. 2d 725, 728–29

(Ala. Crim. App. 1992) (affirming a defendant’s conviction under the statute where

law enforcement found, among other evidence, 18 separate packets of marijuana

hidden in an eyeglass case).

      Defendant acknowledges that Robinson rejected his argument, but he asserts

that Robinson is no longer controlling as a result of the Supreme Court’s decision

in Descamps. His argument is unpersuasive. Binding circuit precedent can only

be overruled by a Supreme Court decision that is “clearly on point.” Garrett v.


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Univ. of Ala. at Birmingham Bd. of Trustees, 344 F.3d 1288, 1292 (11th Cir.

2003). To meet that standard, the intervening Supreme Court decision must

“actually abrogate or directly conflict with, as opposed to merely weaken,” the

prior panel’s holding. United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir.

2009). Obviously, Descamps had no such impact on Robinson. The question

before the Supreme Court in Descamps was whether the modified categorical

approach applies when a state statute of conviction contains a “single, indivisible

set of elements” that is broader than the generic version of an enumerated violent

felony under the ACCA. Descamps, 133 S. Ct. at 2282. The Supreme Court held

that it does not, but that holding has no bearing on our decision in Robinson that

the possession of marijuana “for other than personal use” necessarily involves an

intent to distribute, such that a conviction under § 13A-12-213(a)(1) is

encompassed by the ACCA’s definition of a serious drug offense. See Main Drug,

Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007)

(“Obedience to a Supreme Court decision is one thing, extrapolating from its

implications a holding on an issue that was not before that Court in order to upend

settled circuit law is another thing.”).

      To repeat, because the prior precedent rule requires that we follow Robinson

unless and until it is overruled by this Court en banc or by the Supreme Court,




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Robinson clearly governs—and forecloses—this ground of Defendant’s appeal.

See Robinson, 583 F.3d at 1295–96.

IV.    Defendant’s Cocaine Trafficking Conviction

       Section 13A-12-231 of the Alabama Code prohibits trafficking in specified

kinds of drugs. Defendant was convicted of trafficking in cocaine, pursuant to

§ 13A-12-231(2). This section provides that a person commits the offense of

trafficking in cocaine if he “knowingly sells, manufactures, delivers, or brings into

this state, or . . . is knowingly in actual or constructive possession of, 28 grams or

more of cocaine or of any mixture containing cocaine.” Conviction under this

section carries a mandatory-minimum sentence of three years imprisonment. See

13A-12-231(2)a. The mandatory penalty under the statute increases as the quantity

of cocaine increases. 7

       The above statute prohibiting drug trafficking is part of a three-tiered

scheme for punishing drug offenses in Alabama that also includes: (1) a statute

which prohibits possession of any amount of a controlled substance other than

marijuana (Ala. Code § 13A-12-212)8 and (2) a statute prohibiting the unlawful


7
   See § 13A-12-231(2)b (mandatory-minimum sentence of five years for 500 grams or more, but
less than one kilogram); § 13A-12-231(2)c (mandatory-minimum sentence of fifteen years for
one kilogram but less than ten kilograms); § 13A-12-231(2)d (mandatory-minimum sentence of
life imprisonment without parole for ten kilograms or more).
8
  The penalty for violation of this section, which is designated a Class D felony, is imprisonment
of not more than 5 years or less than 1 year and 1 day. Ala. Code §§ 13A-5-6(a)(4), 13A-12-
212(b). The statute was recently amended, as a violation of this statute was previously a Class C
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distribution of or possession with intent to distribute a controlled substance other

than marijuana (Ala. Code § 13A-12-211). 9

       As noted, the third leg of this three-tier statutory scheme is the statute

prohibiting trafficking in a controlled substance, under which statute Defendant

was convicted: Ala. Code § 13A-12-231(2). Trafficking is the most serious of

these offenses. See Ala. Code § 13A-12-231(13) (stating that trafficking in

cocaine is a Class A felony) and Ala. Code § 13A-5-3(b)(1) (designating Class A

felonies as the most serious offenses). Notwithstanding its top ranking in the

severity-pecking order of Alabama cocaine statutes, Defendant contends that

trafficking in cocaine, as defined by § 13A-12-231(2), does not qualify as a serious

drug offense under the ACCA because it does not necessarily involve

“manufacturing, distributing, or possessing [a controlled substance] with intent” to

do either. See 18 U.S.C. § 924(e)(2)(A)(ii).

       We rejected this same argument in United States v. James, 430 F.3d 1150

(11th Cir. 2005), overruled on other grounds by Johnson v. United States, 135 S.




felony, which provided for a sentence of imprisonment of not more than 10 years or less than 1
year and 1 day. See S.B. 67, 2015 Reg. Sess. (Ala. 2015).
9
  The penalty for violation of this section, which is designated a Class B felony, is imprisonment
of not more than 20 years or less than 2 years. Ala. Code §§ 13A-5-6(a)(2), 13A-12-211(d).

As to the prong of the statute prohibiting unlawful possession with the intent to distribute,
§ 13A-12-211(c)(1) provides that the statute is violated when a person knowingly possesses
more than eight but less than 28 grams of cocaine or a cocaine mixture.
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Ct. 2551 (2015). The defendant in James had a prior conviction for trafficking by

possession of between 200 and 400 grams of cocaine under a Florida statute that is

nearly identical to Ala. Code § 13A-12-231(2), and that fits within a similar three-

tiered statutory scheme defining trafficking as a more serious crime than either

simple possession or possession with intent to distribute. 10 Id. at 1152, 1154. He

argued, as Defendant does here, that the conviction did not qualify as a serious

drug offense under the ACCA because it was based on simple possession of a

specified amount of cocaine rather than a demonstrated intent to manufacture or

distribute. Id. at 1154. We rejected that argument, holding that the Florida

trafficking statute inferred intent to distribute based on the quantity possessed, and

that the defendant’s conviction under the statute thus fell within the ACCA’s

definition of a serious drug offense. Id. at 1155–56.

       The rationale underlying James originated in United States v. Madera-

Madera, 333 F.3d 1228 (11th Cir. 2003). The defendant in Madera-Madera had a

prior conviction for trafficking by possession of 87 grams of methamphetamine

under a materially indistinguishable Georgia trafficking statute that was part of a

comparable three-tiered statutory scheme. Id. at 1230-31. We held that the

conviction qualified as a drug trafficking offense under § 2L1.2(b)(1)(A)(i) of the

10
   The Florida statute provides that a person commits the offense of trafficking if he “knowingly
sells, purchases, manufactures, delivers, or brings into this state, or . . . is knowingly in actual or
constructive possession of, 28 grams or more of cocaine.” Fla. Stat. § 893.135(1)(b)1.
Punishment under the statute depends on the quantity of cocaine involved. Id.
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Sentencing Guidelines. Id. at 1231. For purposes of § 2L1.2, a “drug trafficking

offense” is defined to include a state offense “that prohibits the manufacture,

import, export, distribution, or dispensing of, or offer to sell a controlled substance

. . . or the possession of a controlled substance . . . with intent to manufacture,

import, export, distribute, or dispense.” 11 U.S.S.G. § 2L1.2, comment.

(n.1(B)(iv)). The defendant in Madera-Madera argued that his Georgia trafficking

conviction did not fall within that definition because it was based on mere

possession rather than a listed act such as possession with intent to distribute. We

rejected that argument, reasoning that “Georgia’s trafficking statute necessarily

infers an intent to distribute once a defendant possesses a certain amount of drugs.”

Madera-Madera, 333 F.3d at 1232.

       As Madera-Madera further explained, Georgia’s trafficking statute requires

the possession of a significant quantity of drugs to support a conviction, and its

three-tiered drug punishment scheme deems trafficking to be more serious than

either simple possession or possession with intent to distribute. Id. at 1231–32.

Georgia law thus “recognizes that someone who is in possession of [the requisite

quantity of drugs] . . . plans on distributing and thereby ‘trafficking’ those drugs.”

Id. at 1232. Finally, Madera-Madera noted that if we do not likewise recognize
11
   The Sentencing Commission amended § 2L1.2’s Application Note 1(B)(iv) in 2008 by adding
“offer to sell” to the definition of drug trafficking offense. U.S.S.G. § 2L1.2, App. C, Amend.
722 (2008) (“[T]he amendment clarifies that an ‘offer to sell’ a controlled substance is a ‘drug
trafficking offense’ for purposes of subsection (b)(1) of § 2L1.2 by adding ‘offer to sell’ to the
conduct listed in Application Note 1(B)(iv).”).
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the inferred intent to distribute for purposes of the guidelines, an anomaly would

result: trafficking, the most serious drug crime under Georgia law, would not

qualify for a sentencing enhancement, whereas the less serious crime of possession

with intent to distribute would. Id. at 1233–34.

      When faced in James with the question whether a conviction under a nearly

identical Florida trafficking statute qualified as a serious drug offense for purposes

of an ACCA enhancement, we found no reason to distinguish or depart from

Madera-Madera. James, 430 F.3d at 1154. Citing Madera-Madera, we held that

an inference of intent to distribute was warranted by the significant quantity of

drugs a defendant must possess to violate the trafficking statute and by Florida’s

three-tiered statutory scheme designating trafficking as more serious than either

simple possession or possession with intent to distribute. Id. at 1155. And as in

Madera-Madera, we noted the anomaly that would result from treating a Florida

trafficking conviction more leniently under the ACCA than a Florida conviction

for possession with intent to distribute. Id. “Such an anomalous result,” we

explained, “would thwart the ACCA’s purpose.” Id.

      As an additional ground for our holding in James, we relied on the ACCA’s

definition of a serious drug offense to broadly include “any offense involving the

manufacture, distribution, or possession with intent to manufacture or distribute”

drugs. Id. (citing 18 U.S.C. § 924(e)(2)(A)(ii)) (emphasis added and quotation


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marks omitted). We found it clear from the ACCA’s use of the term “involving”

that the definition of a serious drug offense might include “state offenses that do

not have as an element the manufacture, distribution, or possession of drugs with

intent to manufacture or distribute.” James, 430 F.3d at 1155. As such, we were

unpersuaded by the defendant’s argument that the “language of the Florida statute

need[s] [to] exactly match” the specific acts listed in the ACCA definition. Id.

      Other circuit courts have likewise adopted an expansive interpretation of the

word “involving” as used in the ACCA’s definition of a serious drug offense. See

United States v. Whindleton, 797 F.3d 105, 110–11 (1st Cir. 2015) (holding that an

offer to sell drugs is sufficiently related to distribution to qualify as a serious drug

offense, even if the defendant never possesses the drugs and the offer is not

accepted); United States v. Bynum, 669 F.3d 880, 886 (8th Cir. 2012) (holding the

same and noting that involving is an expansive term); United States v. Winbush,

407 F.3d 703, 708 (5th Cir. 2005) (“the term ‘involving’ clearly suggests that

Congress intended to include other drug offenses, in addition to those already

enumerated”); United States v. King, 325 F.3d 110, 113 (2d Cir. 2003) (construing

the word involving “as extending the focus of § 924(e) beyond the precise offenses

of distributing, manufacturing, or possessing” to include the offense of attempted

possession with intent to sell); United States v. Alexander, 331 F.3d 116, 131 (D.C.

Cir. 2003) (relying on the “expansive connotations” of the word involving to hold


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that a conviction for attempted possession with intent to distribute qualified as a

serious drug offense under the ACCA (internal quotation marks and citation

omitted)).

      None of these courts, however, have held that a conviction for trafficking

based on the possession of a certain quantity of drugs is a serious drug offense

under the ACCA. Nonetheless, they have all rejected the basic premise of the

argument made by the defendant in James—and by Defendant in this case—that an

offense cannot qualify unless it expressly requires “actual distribution or

manufacture, or a specific intent to distribute or manufacture.” The Fourth Circuit

is the only other circuit court to have considered the specific issue that was before

us in James. See United States v. Brandon, 247 F.3d 186, 192 (4th Cir. 2001).

Consistent with James, the court in Brandon indicated that it would have “no

difficulty concluding” that a conviction for trafficking by possession of a

sufficiently large quantity of drugs “‘involved’ an intent to . . . distribute” because

“it is natural and reasonable to assume that those who possess very large quantities

of drugs intend to distribute those drugs.” Id. Brandon thus concurred with our

reasoning in James that it is not essential that the state statute of conviction include

as an element a specific intent to manufacture or distribute to qualify as a serious

drug offense under the ACCA. Id. at 190. Nevertheless, Brandon concluded that

the 28-gram threshold required for a conviction under the North Carolina


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trafficking statute at issue in that case—the same amount required under the

Florida trafficking statute in James and under the Alabama trafficking statute at

issue here—was simply too low a quantity of drugs to warrant an inference of the

defendant’s intent to distribute. Id. at 192–93. In short, Brandon agreed in

principle with our approach in James—that a statute classifying possession of a

certain quantity of drugs was sufficient to indicate an intent to distribute those

drugs. Brandon, however, disagreed that possession of 28 grams of cocaine was

sufficient to give rise to that inference.

      Defendant cites decisions from the Fifth, Sixth, Ninth, and Tenth Circuits in

which those courts refused to infer intent to distribute in the context of determining

whether a state trafficking-by-possession conviction qualified as a “drug

trafficking offense” under § 2L1.2 or a “controlled substance offense” under

§ 4B1.1 of the guidelines. In each of the cited decisions, the court held that such

an inference was contrary to the guidelines definitions of a drug trafficking offense

and a controlled substance offense, both of which are limited to offenses that

prohibit “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” it. U.S.S.G. §§ 2L1.2,

4B1.2(b). See United States v. Lopez-Salas, 513 F.3d 174, 180 (5th Cir. 2008)

(“The Guidelines could have defined a drug trafficking offense based on the


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quantity of drugs possessed. Instead, they require that a state prove an intent to

manufacture, import, export, distribute, or dispense.”); United States v. Villa-Lara,

451 F.3d 963, 965–66 (9th Cir. 2006) (focusing on the guidelines definition of a

drug trafficking offense to conclude that the defendant’s Nevada trafficking by

possession conviction did not qualify); United States v. Montanez, 442 F.3d 485,

488 (6th Cir. 2006) (“[U]nder the Guidelines, simple possession—that is,

possession without the proof beyond a reasonable doubt of the requisite intent to

‘manufacture, import, export, distribute, or dispense’—is not a controlled

substance offense.”); United States v. Herrera-Roldan, 414 F.3d 1238, 1241 (10th

Cir. 2005) (rejecting the Government’s argument that the guidelines permit an

inference of intent to distribute based on the defendant’s possession of more than

50 pounds of marijuana).

       Contrary to Defendant’s argument, these decisions do not necessarily

conflict with the result we reached in James, which was an ACCA case. For the

most part, 12 though, they do reject the rationale underlying Madera-Madera. As

discussed, there is general agreement among the circuits that the ACCA’s

12
   Herrera-Roldan did not reject Madera-Madera, but found it distinguishable based on
differences between the state statutes of conviction at issue in the two cases. Herrera-Roldan,
414 F.3d at 1242–43. Specifically, the Georgia statute addressed in Madera-Madera does not
distinguish between simple possession and other acts, such as delivery or possession with intent
to deliver, when a sufficiently large quantity of drugs is involved, giving rise to the inference that
Georgia treats possession of the qualifying amount as necessarily involving an intent to
distribute. Id. No similar inference is warranted under the Texas statute involved in Herrera-
Roldan, which gradually increases punishment for both possession and delivery based on the
quantity of drugs involved. Id.
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definition of a serious drug offense is broader than the guidelines definition of a

drug trafficking or a controlled substance offense because of the ACCA’s use of

the term “involving.” Based on that broad language, we reasoned in James that

“the Florida statute need not exactly match” the specific acts listed in the ACCA’s

definition. James, 430 F.3d at 1155. That reasoning is undisturbed by the cited

decisions holding (1) that the guidelines definition of a drug trafficking and a

controlled substance offense does require an exact match and (2) that there is no

match when the state statutes of conviction require nothing more than possession

of a certain quantity of drugs.

      Finally, we reject Defendant’s argument that James is no longer controlling

as a result of the Supreme Court’s decision in Descamps. As noted, the Supreme

Court held in Descamps that “sentencing courts may not apply the modified

categorical approach” to determine whether a defendant’s conviction under a

statute with a “single, indivisible set of elements” qualifies as a violent felony

under the ACCA. Descamps, 133 S. Ct. at 2282. The Supreme Court had no

occasion in Descamps to decide whether it is appropriate to infer intent to

distribute based on the quantity of drugs that must be possessed in order to violate




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a state trafficking statute, or even to consider more generally the proper

interpretation or application of the ACCA’s serious drug offense provision.13

       We are thus bound under the prior precedent rule to follow our decision in

James unless and until it is abrogated by an en banc decision or by a Supreme

Court decision. Therefore, we hold in accordance with James that Defendant’s

Alabama conviction for trafficking by possession of at least 28 grams of cocaine

constitutes a serious drug offense and a valid predicate under the ACCA.

                                       CONCLUSION

       For the reasons discussed above, Defendant’s sentence is AFFIRMED.




13
   For similar reasons, neither does the Supreme Court’s recent decision invalidating the
ACCA’s residual clause in Johnson, nor its decision clarifying the divisibility analysis in Mathis,
abrogate James.
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