           Case: 19-11458   Date Filed: 08/14/2020   Page: 1 of 10



                                                      [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11458
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:18-cr-00066-MW-CAS-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

MARRELL HUNTER,

                                              Defendant - Appellant.

                       ________________________

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

                             (August 14, 2020)



Before JORDAN, JILL PRYOR, and LAGOA, Circuit Judges.

PER CURIAM:
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      Marrell Hunter (“Hunter”) appeals his 180-months sentence for being a felon

in possession of a firearm. On appeal, Hunter argues that he was not subject to a

base offense level increase and other sentencing enhancements because his prior

felony convictions under Florida Statute § 893.13(1)(a) are neither “serious drug

offenses” under the Armed Career Criminal Act (“ACCA”) nor “controlled

substance offenses” under the U.S. Sentencing Guidelines. Because United States

Supreme Court and Eleventh Circuit precedents foreclose Hunter’s arguments, we

affirm his sentence.

I.    FACTUAL AND PROCEDURAL HISTORY

      On November 6, 2018, a grand jury returned a one-count indictment, which

alleged that Hunter “knowingly possess[ed] a firearm in and affecting interstate

commerce” in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment

referenced six of Hunter’s prior felony convictions.        Of relevance here, the

indictment stated that Hunter was convicted—twice—in Florida for the sale or

delivery of a controlled substance. Hunter accepted a plea agreement and pleaded

guilty to the charge in the indictment.

      After the district court accepted Hunter’s guilty plea, a probation officer

prepared Hunter’s presentence investigation report.        Under U.S. Sentencing

Guidelines § 2K2.1, a defendant who previously committed “at least two felony

convictions of . . . a controlled substance offense” receives a base offense level of


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twenty-four. U.S.S.G. § 2K2.1(a)(2) (emphasis added). The Sentencing Guidelines

define a “controlled substance offense” as a state or federal law offense, “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.” U.S.S.G. § 4B1.2(b). The probation officer determined that

Hunter’s two convictions under Florida Statute § 893.13(1)(a) for the sale or delivery

of a controlled substance (cocaine or crack cocaine) warranted a base offense level

of twenty-four. See Fla. Stat. § 893.13(1)(a)(1) (stating that it is a second-degree

felony to “sell, manufacture, or deliver, or possess with intent to sell, manufacture,

or deliver, a controlled substance” described in Florida Statute § 893.03(2)(a)); id. §

893.03(2)(a) (listing cocaine and any of its derivatives); id. § 775.082(3)(d) (stating

that a term of imprisonment for a second-degree felony is a term not exceeding

fifteen years).

      The probation officer then enhanced Hunter’s offense level to thirty-three

after determining that Hunter qualified as an armed career criminal under the ACCA.

Under the ACCA, an armed career criminal is a defendant who has violated 18

U.S.C. § 922(g) and has previously committed three “violent felon[ies] or serious

drug offense[s].” See 18 U.S.C. § 924(e)(1) (emphasis added). The ACCA defines

“serious drug offense” as “an offense under State law, involving manufacturing,


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distributing, or possessing with intent to manufacture or distribute, a controlled

substance . . . for which a maximum term of imprisonment of ten years or more is

prescribed by law.” Id. § 924(e)(2)(A)(ii). Relevant to this appeal, Hunter’s

convictions under state law for the sale or delivery of controlled substances served

as two of the three predicate offenses for this enhancement.

       After raising Hunter’s offense level to thirty-three, the probation officer noted

a three-level reduction for acceptance of responsibility, resulting in a total offense

level of thirty. With a criminal history category of VI and a total offense level of

thirty, Hunter would have received a guideline range of 168 to 210 months of

imprisonment. U.S.S.G. Sentencing Table, ch. 5, pt. A. However, as an armed

career criminal, Hunter faced a mandatory minimum sentence of fifteen years

imprisonment and an adjusted guideline range of 180 to 210 months of

imprisonment. See 18 U.S.C. § 924(e)(1).

      Hunter objected to the presentence investigation report and argued that he

should not be subjected to the offense level enhancement and fifteen-year mandatory

minimum sentence. Specifically, he contended that a violation of Florida Statute §

893.13(1)(a) was neither a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii)

nor a “controlled substance offense” under Sentencing Guidelines § 4B1.2(b).

Hunter argued that the district court should adopt the categorical approach utilized

by the Ninth Circuit in United States v. Franklin, 904 F.3d 793 (9th Cir. 2018),


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abrogated by Shular v. United States, 140 S. Ct. 779 (2020), under which the

elements of a state criminal offense—here, the elements of Florida Statute §

893.13(1)(a)—should be compared to elements of “generic” or “commonly

understood” definitions of a “serious drug offense” and “controlled substance

offense.” See Franklin, 904 F.3d at 796–97. Hunter argued that because Florida

Statute § 893.13(1)(a) does “not contain a mens rea element,” while “generic”

definitions of “serious drug offense” and “controlled substance offense” do, his

“Florida crimes are broader than the generic drug analogues.” Therefore, Hunter

contended, his Florida convictions cannot serve as the bases for his offense level

enhancement and mandatory minimum sentence.

      Before the district court, Hunter acknowledged that his arguments were

foreclosed by United States v. Smith, 775 F.3d 1262 (11th Cir. 2014). In Smith, we

rejected the generic-offense analysis Hunter advocated and instead determined that

the definitions of “serious drug offense” and “controlled substance offense” in §

924(e)(2)(A) and U.S. Sentencing Guidelines § 4B1.2(b) should be compared to the

state offense. 775 F.3d at 1267. As a result, we held that a conviction under Florida

Statute § 893.13(1) is a “serious drug offense” under § 924(e)(2)(A) and a

“controlled substance offense” under Sentencing Guidelines § 4B1.2(b). 775 F.3d

at 1268.




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       At the sentencing hearing, the district court noted that the court was bound to

follow Eleventh Circuit precedent, overruled Hunter’s objections and found that

Hunter’s “two sales [were] qualifying offenses consistent with well-established case

law in this circuit.”    The district court sentenced Hunter to 180-months of

imprisonment. This timely appeal followed.

II.    STANDARD OF REVIEW

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

under the ACCA.” United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016).

III.   ANALYSIS

       In his initial brief, Hunter argued that we should adopt the generic-offense

analysis used in Franklin and that, because his convictions under Florida Statute §

893.13(a)(1) did not require a mens rea element, they do not qualify as generic drug

offenses. Hunter acknowledged that Smith, as binding precedent, controlled the

outcome of his appeal but raised the issue to preserve his arguments for en banc or

Supreme Court review. After filing his initial brief, Hunter filed a motion asking

this Court to stay briefing pending the United States Supreme Court’s decision in

Shular v. United States, 140 S. Ct. 779 (2020), which this Court granted.

       On February 26, 2020, the Supreme Court issued its decision in Shular v.

United States, 140 S. Ct. 779 (2020). In Shular, the Court affirmed our judgment in

United States v. Shular, 736 F. App’x 876 (11th Cir. 2018), where we had reaffirmed


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that Smith is binding precedent and that a violation of Florida Statute § 893.13(1)(a)

is a “serious drug offense” under § 924(e)(2)(A)(ii). 736 F. App’x at 877. In Shular,

the Supreme Court resolved the question of whether “§ 924(e)(2)(A)(ii)’s ‘serious

drug offense’ definition call[ed] for a comparison to a generic offense.” 140 S. Ct.

at 782. Based on the text and structure of § 924(e)(2), the Court held that “it does

not. The ‘serious drug offense’ definition requires only that the state offense involve

the conduct specified in the federal statute; it does not require that the state offense

match certain generic offenses.” Id. (emphasis added). Specifically, the Supreme

Court noted that “the terms in § 924(e)(2)(A)(ii)—‘manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance’—are

unlikely names for generic offenses,” and compared those terms to the language used

in other provisions of the ACCA that require a generic-offense analysis. Id. at 785

(quoting § 924(e)(2)(A)(ii)).     Second, the Supreme Court explained that “by

speaking of activities a state-law offense ‘involv[es],’ § 942(e)(2)(A)(ii) suggests

that the descriptive terms immediately following the word ‘involving’ identify

conduct,” rather than enumerating offenses. Id. (quoting § 924(e)(2)(A)(ii)).

      Following the Supreme Court’s decision in Shular, the government filed its

response brief and Hunter filed his reply brief. Regarding the ACCA’s “serious drug

offense” sentence enhancement, Hunter argued in his reply brief that Shular

nonetheless requires reversal of his sentence because Shular adopted a narrower test


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than the one articulated in Smith and thereby abrogated that decision. Specifically,

Hunter argued that Shular’s analysis would not permit sentence enhancement under

the ACCA for a prior conviction under Florida Statute § 893.13(1) because Florida

law permits conviction for the attempted sale or delivery of a controlled substance

while the ACCA’s definition of “serious drug offense” requires actual distribution.

Thus, according to Hunter, because Smith permits enhancement under the ACCA for

a violation of Florida Statute § 893.13(1) while Shular’s analysis does not, Smith has

been abrogated and his sentence must be reversed.

      For similar reasons, Hunter argued in his reply brief that Florida Statute §

893.13(1)(a) is not a “controlled substance offense” under the Sentencing

Guidelines. Hunter also argued that the use of the word “prohibits” in Sentencing

Guideline § 4B1.2(b), as opposed to the word “involving” in § 942(e)(2)(a)(ii),

means that the Sentencing Guidelines’ definition of “controlled substance offense”

requires an offense-based approach, rather than the conduct-based approach Shular

requires for the ACCA’s definition of “serious drug offense.”

      We conclude that Shular and Smith require affirmance of the district court’s

sentence.   First, to the extent Hunter maintains the generic-offense/mens rea

argument raised in his initial brief, Shular expressly forecloses that argument, as it

relates to whether a conviction under Florida Statute § 893.13(1)(a) constitutes a

“serious drug offense” pursuant to § 942(e)(2)(A)(ii). 140 S. Ct. at 784. Second,


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we disagree that Smith no longer binds panels in this Circuit. To constitute an

overruling of a panel precedent, a Supreme Court decision must be clearly on point

and must “actually abrogate or directly conflict with, as opposed to merely weaken,

the holding of the prior panel.” United States v. Kaley, 579 F.3d 1246, 1255 (11th

Cir. 2009). Shular did not address the question of whether a conviction under

Florida Statute § 893.13(1)(a) constitutes a “controlled substance offense” pursuant

to Sentencing Guidelines § 4B1.2(b). Nor did it require an offense-based approach

to provisions like Sentencing Guidelines § 4B1.2(b) that are analogous to §

942(e)(2)(A)(ii) but do not use the word “involving” to reference the covered

conduct. Finally, Shular did not address the question of whether Florida Statute §

893.13(1)(a) permits convictions based on attempted conduct and, if so, whether a

conviction under that statute constitutes a “controlled substance offense” or “serious

drug offense” under the Sentencing Guidelines and the ACCA, respectively.

Moreover, even assuming for argument’s sake that Shular adopted a narrower legal

test than Smith, Shular’s substantive holding—that a court applying §

942(e)(2)(A)(ii) need not delineate the elements of a generic offense—appears

consistent with and supports our decision in Smith.1



       1
         Shular, Smith, and this case all involve a prior felony conviction under the same provision
of Florida law, and Shular affirmed our judgment that applied Smith. Following Shular, we have
found Smith to still be binding precedent in two unpublished decisions. See United States v.
Campbell, No. 18-14205, 2020 WL 2988847 (11th Cir. June 4, 2020) (unpublished); United States
v. Miller, 806 F. App’x 963 (11th Cir. 2020) (unpublished).
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      Thus, until the Supreme Court or this Court en banc overrules Smith, Smith

remains binding precedent in this Circuit, and we must apply it to this case. See

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (describing the prior

precedent rule). Under Smith, Florida Statute § 893.13(1) is both a “serious drug

offense” under § 924(e)(2)(A) and a “controlled substance offense” under

Sentencing Guidelines § 4B1.2(b). See 775 F.3d at 1268. Because Smith remains

binding precedent, the district court did not err in sentencing Hunter.

IV.   CONCLUSION

      For the foregoing reasons, we affirm Hunter’s sentence.

      AFFIRMED.




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