           Case: 13-15683   Date Filed: 01/05/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15683
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20383-KMW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

TIMOTHY SMITH,

                                                         Defendant-Appellant.

                      ________________________

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

                            (January 5, 2015)

Before WILLIAM PRYOR, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 13-15683      Date Filed: 01/05/2015   Page: 2 of 5


      Timothy Smith appeals his sentence of 180 months of imprisonment

following his plea of guilty to being a felon in possession of a firearm and

ammunition. See 18 U.S.C. § 922(g)(1). Smith challenges the enhancement of his

sentence under the Armed Career Criminal Act. See id. § 924(e)(1). We affirm.

      Smith argues that his prior conviction in a Florida court for possessing with

intent to deliver cocaine does not qualify as a “serious drug offense” under the Act,

but we disagree. The Act defines a “serious drug offense” broadly as “an offense

under State law, involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance (as defined in section 102 of the

Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of

imprisonment of ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii); see

United States v. James, 430 F.3d 1150, 1155 (11th Cir. 2005). Smith’s prior

conviction falls squarely within that definition. Smith violated a Florida law that

makes it unlawful “to sell, manufacture, or deliver, or possess with intent to sell,

manufacture, or deliver, a controlled substance,” Fla. Stat. §§ 893.13(1)(a)1.,

893.03(2)(a)4., and for which he faced a maximum sentence of 15 years of

imprisonment, id. § 775.082(3)(d). Smith contends that his prior conviction does

not qualify as a predicate offense because it does not require proof that an offender

know of the illicit nature of the substance in his possession, but proof of that




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knowledge is not required for a drug offense under state law to qualify as a

“serious drug offense.”

      Smith argues that the district court was required to compare his state offense

to a generic offense under the categorical approach that we applied in Donawa v.

United States Attorney General, 735 F.3d 1275 (11th Cir. 2013), but we disagree.

In Donawa, we held that an alien’s conviction for possessing with intent to deliver

marijuana, see Fla. Stat. § 893.13(1)(a)2., failed to qualify as an “aggravated

felony” under the Immigration and Nationality Act – that is, the state offense did

not fit the definition of a “drug trafficking crime,” see 18 U.S.C. § 924(c)(2).

Donawa, 735 F.3d at 1280–81. We concluded that the Florida statute did not

“categorically fit[] within the generic federal definition of a corresponding

aggravated felony” because the federal analogue to the Florida statute, 21 U.S.C.

§ 841(a)(1), required proof that the defendant had knowledge of the nature of the

substance in his possession, but the Florida statute did not. Id. Unlike the defendant

in Donawa, Smith was sentenced under the Armed Career Act, which includes as a

“serious drug offense” a prior state conviction for possessing with intent to

distribute a controlled drug. See 18 U.S.C. § 924(e)(2)(A)(ii). The Armed Career

Act does not require the district court to compare an offense under state law to a

generic offense.




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      Smith, for the first time on appeal, argues that Staples v. United States, 511

U.S. 600, 114 S. Ct. 1793 (1994), required the district court to presume that his

drug offense required proof that he knew of the illicit nature of the substance in his

possession, but the district court did not plainly err. In Staples, the Supreme Court

held that there is a scienter requirement implicit in the offense of possessing an

unregistered automatic firearm, see 18 U.S.C. § 5861(d). Staples, 511 U.S. at 618–

19, 114 S. Ct. at 1803–04. “An error is ‘plain’ [only] if controlling precedent from

the Supreme Court or the Eleventh Circuit establishes that an error has occurred.”

United States v. Ramirez–Flores, 743 F.3d 816, 822 (11th Cir. 2014). The district

court did not plainly err in failing to apply Staples, which did not address the

Armed Career Act. In Staples, the Supreme Court also “emphasize[d] that [its]

holding [was] a narrow one.” 511 U.S. at 619, 114 S. Ct. at 1804. Staples does not

establish that an error occurred in sentencing Smith.

      Smith also argues that the recent decision of the Supreme Court in Alleyne v.

United States, 570 U.S. ___, 133 S. Ct. 2151(2013), requires that the government

prove his prior convictions to a jury beyond a reasonable doubt, but we disagree.

The Supreme Court in Alleyne refused to revisit its holding in Almendarez–Torres

v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), that the fact of a prior

conviction is not an element of an offense that needs to be proven beyond a




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reasonable doubt, id. at 239–47, 118 S. Ct. at 1228–32. Alleyne, 133 S. Ct. at 2160

n.1.

       We AFFIRM Smith’s sentence.




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