           Case: 15-13604   Date Filed: 08/02/2016   Page: 1 of 4


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13604
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:14-cr-20409-BB-2



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

versus

DAX RUSSELL,
a.k.a. Dewey,

                                                     Defendant-Appellant.
                       ________________________

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

                             (August 2, 2016)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Dax Russell appeals his 102-month sentence, imposed after he pled guilty to

conspiring to possess cocaine and heroin with the intent to distribute, in violation

of 21 U.S.C. § 846. On appeal, Mr. Russell argues that his two prior convictions

under Fla. Stat. § 893.13 could not be considered predicate offenses to make him a

career offender under the Sentencing Guidelines because the definition of

“controlled substance offense” under U.S.S.G. § 4B1.2 requires that the defendant

know that the substance in question is a controlled substance.            Mr. Russell

contends that all the enumerated offenses in the statutory source of the career

offender status, 28 U.S.C. § 994(h), have such a scienter element, and because his

Florida convictions lack this element, they are not predicates under § 4B1.2.

      We review de novo the district court’s decision to classify Mr. Russell as a

career offender. See United States v. Whitson, 597 F.3d 1218, 1220 (11th Cir.

2010). After review of the parties’ briefs and the record, we affirm.

      Under the Sentencing Guidelines, a “controlled substance offense” is

defined as “an offense under federal or state law . . . 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). In United States v. Smith, 775 F.3d

1262 (11th Cir. 2014), we addressed the argument pressed by Mr. Russell. We

held that offenses under Fla. Stat. § 893.13 are properly considered controlled


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substance offenses under § 4B1.2(b) because, although the Florida statute does not

have a knowledge or mens rea requirement as to the nature of the controlled

substance, the definition of a controlled substance offense used in the career

offender guideline does not mention any such mens rea or knowledge requirement.

See id. at 1267–68.   We refused to read such a requirement into that definition

because the Sentencing Guidelines’ definition of controlled substance offense was

unambiguous. See id. at 1267.

      In United States v. LaBonte, 520 U.S. 751 (1997), the Supreme Court

addressed the meaning of the phrase “maximum term authorized” under an

amendment to the definition of a career offender under the Sentencing Guidelines.

The Court held that this phrase meant the maximum prison term available for the

offense of conviction, including any statutory sentencing enhancements, because

the plain language of § 994(h) controlled over any inconsistent interpretation by

the Sentencing Commission. See id. at 756–57. The Court did not, however,

consider the scope of previous convictions that could qualify a person for career

offender status.

      We have previously held that the authority of the Sentencing Commission to

decide which offenses count as controlled substance offenses is not limited to the

mandate in § 994(h). See United States v. Weir, 51 F.3d 1031, 1032 (11th Cir.

1995). As a result, § 994(h) does not demand that we read into the guideline


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definition of controlled substance offense the knowledge element that is contained

in analogous federal drug offenses. The Sentencing Commission has the authority

to include offenses that are not listed in § 994(h) under its definition of a controlled

substance offense, and Mr. Russell has not cited to any authority requiring that the

definition must only cover offenses with a knowledge element.

      We conclude that LaBlonte is not in conflict with and does not abrogate

Smith under the circumstances presented here. See United States v. Archer, 531

F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding is binding on all

subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc.”); Garrett v.

University of Alabama at Birmingham Bd. of Trustees, 344 F.3d 1288, 1292 (11th

Cir. 2003) (“While an intervening decision of the Supreme Court can overrule the

decision of a prior panel of our court, the Supreme Court decision must be clearly

on point.”). Under our binding precedent, Mr. Russell’s prior convictions under

Fla. Stat. § 893.13 were properly considered controlled substance offenses for the

purposes of the career offender guideline. See Smith, 775 F.3d at 1267-68.

      AFFIRMED.




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