            Case: 18-10261    Date Filed: 12/31/2018   Page: 1 of 4


                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10261
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:17-cr-00030-MTT-CHW-1



UNITED STATES OF AMERICA,

                                                             Plaintiff - Appellee,

                                   versus

SCOTTY HAGANS,

                                                          Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (December 31, 2018)

Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
                Case: 18-10261       Date Filed: 12/31/2018      Page: 2 of 4


       Scotty Hagans appeals his 160-month total sentence for possession with

intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C). After review, 1 we affirm Hagans’ sentence.

                                               I.

       First, Hagans contends Application Note 1 to U.S.S.G. § 4B1.2(b), used by

the district court to further define a controlled substance offense as including

aiding and abetting, is inconsistent with the Guidelines and should be considered

non-binding commentary because inchoate crimes in general should not qualify as

controlled substance offenses.

       We held in United States v. Smith that Guidelines commentary is

“authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.” United States

v. Smith, 54 F.3d 691, 693 (11th Cir. 1995). We concluded Application Note 1 of

§ 4B1.2, which included inchoate offenses as controlled substance offenses, “does

not run afoul of the Constitution . . . nor is it inconsistent with, or a plainly

erroneous reading of, sections 4B1.1 or 4B1.2.” Id. Thus, we held that




       1
           We review de novo a question of law arising under the Sentencing Guidelines. United
States v. Smith, 54 F.3d 690, 691 (11th Cir. 1995). We review de novo whether a prior
conviction qualifies as a controlled substance offense under U.S.S.G. § 4B1.2(b). United States
v. Lange, 862 F.3d 1290, 1293 (11th Cir.), cert. denied, 138 S. Ct. 488 (2017).

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Application Note 1 “constitutes a binding interpretation of the term controlled

substance offense.” Id. (quotations omitted).

      Neither this Court en banc nor the Supreme Court has overruled Smith, and

thus, under the prior precedent rule, Hagans’ argument the district court

inappropriately relied on Application Note 1 to § 4B1.2(b) is foreclosed by

precedent. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.

2008) (explaining under the prior precedent rule, we are bound by “a prior binding

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

Court”).

                                         II.

      Second, Hagans asserts the district court rendered a procedurally

unreasonable sentence by treating his prior convictions as controlled substance

offenses because he could have been convicted of the offenses under Georgia’s

party to a crime statute, which he argues is overly broad.

      The definition of a controlled substance offense under § 4B1.1 is found in

§ 4B1.2, which states:

      The term “controlled substance offense” means an offense under
      federal or state law, punishable by imprisonment for a term exceeding
      one year, 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.



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U.S.S.G. § 4B1.1, comment. (n.1); § 4B1.2(b). To determine what constitutes a

controlled substance offense, the predicate offense must “prohibit[] certain

activities related to controlled substances.” United States v. Lange, 862 F.3d 1290,

1295 (11th Cir. 2017). To decide whether the offense “prohibits” such activities,

we apply the categorical approach and compare “the definition in the Guidelines

with the statutory offense, not the conduct underlying the conviction.” Id. at 1293

(quotations omitted). Specifically, when the Guidelines provide a definition for

predicate offenses, we compare “the elements of the crime of conviction to the

generic form of the offense as defined by the States.” United States v. Lockley,

632 F.3d 1238, 1242 (11th Cir. 2011) (emphasis added).

      Hagans was convicted in 1993 for the sale of cocaine under O.C.G.A. § 16-

13-30 and in 2007 for trafficking in cocaine under O.C.G.A. § 16-13-31. Thus,

Hagans’ “crime[s] of conviction” were O.C.G.A. §§ 16-13-30 and 16-13-31. See

Lockley, 632 F.3d at 1242. We reject Hagans’ invitation to look beyond Hagans’

“crime[s] of conviction” and consider Georgia’s party to a crime statute. The party

to a crime statute was not one of Hagans’ “crime[s] of conviction.” Hagans makes

no argument on appeal that O.C.G.A. §§ 16-13-30 and 16-13-31 do not qualify as

controlled substance offenses apart from the party to a crime statute. Accordingly,

we affirm.

      AFFIRMED.


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