              Case: 15-13193     Date Filed: 05/31/2016   Page: 1 of 7


                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-13193
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket Nos. 1:13-cv-23468-DLG,
                             1:10-cr-20844-DLG-1


TOM MAURICE JONES,

                                                               Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                           ________________________

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

                                  (May 31, 2016)

Before TJOFLAT, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Tom Maurice Jones appeals the denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. We affirm.
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                                I. BACKGROUND

      Jones was charged with and convicted of one count of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g).

Because Jones had six prior convictions under Fla. Stat. § 893.13, which prohibits

the sale, manufacture, or delivery of, or possession with intent to sell, manufacture,

or deliver controlled substances, the presentence investigation report (“PSR”)

states he was subject to an enhanced sentence under the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e). Based on his armed-career-criminal status,

Jones had a total-offense level of 33 and a criminal-history category of VI,

resulting in a Sentencing Guidelines range of 235 to 293 months of imprisonment.

At sentencing, Jones objected to the ACCA enhancement, because his prior

convictions were not presented at trial and proved to the jury beyond a reasonable

doubt; the district judge overruled his objection. The judge varied downward from

the Guidelines range and imposed a sentence of 211 months of imprisonment. We

affirmed Jones’s conviction and sentence on direct appeal. United States v. Jones,

479 F. App’x 874, 875 & n.1 (11th Cir. 2012).

      Thereafter, Jones filed a pro se § 2255 motion, raising a single claim of

ineffective assistance of counsel. Jones later moved to supplement his motion to

include the additional claim that his prior convictions under Fla. Stat. § 893.13 did

not constitute “serious drug offenses” under the ACCA or “controlled substance


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offenses” under the career-offender guidelines. A magistrate judge granted Jones’s

motion to supplement and appointed counsel for him. Following the appointment

of counsel, Jones filed a memorandum of law in support of his supplemental

motion to vacate. He argued his convictions under Fla. Stat. § 893.13(1) were not

serious drug offenses for purposes of the ACCA, because the Florida statute lacked

a mens rea element respecting the illicit nature of the substance; consequently, it

was broader than the generic offense.

      The government responded Jones’s argument was foreclosed by our decision

in United States v. Smith, 775 F.3d 1262 (11th Cir. 2014), cert. denied, 135 S. Ct.

2827 (2015), which held convictions under § 893.13(1) qualified as “serious drug

offenses” under the ACCA and “controlled substance offenses” under the career-

offender guidelines, because neither of those provisions required that predicate

offenses contain a mens rea element respecting the illicit nature of the substance.

Id. at 1267-68. Jones replied the decision in Smith was not yet final, because a

petition for rehearing en banc was pending and noted the Supreme Court recently

had granted certiorari in McFadden v. United States, 576 U.S. __, 135 S. Ct. 2298,

192 L. Ed. 2d 260 (2015), to resolve an analogous question concerning the mens

rea element for convictions under the Controlled Substance Analogue Enforcement

Act (“Analogue Act”).




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      A magistrate judge issued a Report and Recommendation (“R&R”),

recommending Jones’s motion to vacate be denied. Concerning his ineffective-

assistance claim, the magistrate judge concluded Jones had failed to establish

prejudice and was entitled to no relief. Regarding his challenge to the use of his

§ 893.13 convictions as ACCA predicate offenses, the magistrate judge noted we

recently had rejected Jones’s argument in Smith. Consequently, Jones was

precluded from arguing his § 893.13 convictions were not serious drug offenses.

The magistrate judge concluded a certificate of appealability (“COA”) was not

warranted, because Jones had not demonstrated he had been denied a constitutional

right or that reasonable jurists could debate the issue.

      Jones objected to the R&R, reiterated the arguments raised in his reply, and

asserted the magistrate judge had erred in recommending a COA not issue. The

district judge denied Jones’s motion to vacate but disagreed with the magistrate

judge’s recommendation regarding the issuance of a COA. The judge found a

COA was warranted in view of the pending petition for certiorari in Smith and the

grant of certiorari in McFadden; accordingly, the judge granted a COA regarding

only Jones’s ACCA claim.

      On appeal, Jones argues we should reconsider Smith, because it was wrongly

decided for a number of reasons. He also asserts the Supreme Court’s recent




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decision in McFadden, while not binding in this case, suggests his interpretation of

the Guidelines is correct.

                                 II. DISCUSSION

      In reviewing the denial of a § 2255 motion, we review factual findings for

clear error and questions of law de novo. Dell v. United States, 710 F.3d 1267,

1272 (11th Cir. 2013). We review de novo whether a prior conviction is a serious

drug offense within the meaning of the ACCA. United States v. Robinson, 583

F.3d 1292, 1294 (11th Cir. 2009). Under the prior-panel-precedent rule, we are

bound by the holding of a prior panel unless and until it is overruled or undermined

to the point of abrogation by a decision of the Supreme Court or an en banc

decision if our court. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.

2008).

      The ACCA provides a person, who violates 18 U.S.C. § 922(g) and has three

previous convictions for a serious drug offense, shall be subject to a mandatory-

minimum sentence of 15 years of imprisonment. 18 U.S.C. § 924(e)(1). In

relevant part, a “serious drug offense” is defined as “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 imprisonment

of ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii). The career-

offender guidelines provide a defendant is a career offender, if he has at least two


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prior felony convictions for a controlled-substance offense. U.S.S.G. § 4B1.1(a).

A “controlled substance offense” is “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.” U.S.S.G. § 4B1.2(b).

      Under Florida law, it is unlawful to “sell, manufacture, or deliver, or possess

with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat.

§ 893.13(1)(a). For offenses under Fla. Stat. § 893.13 committed after 2002,

“knowledge of the illicit nature of a controlled substance is not an element of [the]

offense.” Fla. Stat. § 893.101(2). Therefore, a defendant may be convicted under

§ 893.13(1)(a) even if he was unaware the substance he possessed was a controlled

substance. See id. In Smith, we held convictions under Fla. Stat. § 893.13(1)

qualify as “serious drug offenses” for purposes of the ACCA and “controlled

substance offenses” for purposes of the career-offender guidelines, despite the lack

of a mens rea element in § 893.13, because neither the ACCA definition of

“serious drug offense” nor the Guidelines definition of “controlled substance

offense” includes a mens rea element regarding the illicit nature of the controlled

substance. Smith, 775 F.3d at 1267-68.




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      In McFadden, the Supreme Court addressed the mens rea required for a

conviction under 21 U.S.C. § 841(a)(1), when the controlled substance at issue was

a controlled-substance analogue. McFadden, 576 U.S. at __, 135 S. Ct. at 2302.

The Court held § 841(a)(1) required the government to prove the defendant knew

he was dealing with a controlled substance, meaning he either knew the substance

was controlled under the Controlled Substances Act or Analogue Act or knew the

specific features of the substance that made it a controlled-substance analogue. Id.

      Our decision in Smith squarely forecloses Jones’s argument that convictions

under § 893.13(1) cannot constitute serious drug offenses or controlled substance

offenses, because the statute lacks a mens rea element. See Smith, 775 F.3d at

1267-68. Smith has not been overturned or abrogated by an en banc decision of

our court or by the Supreme Court; therefore, it remains binding precedent.

Archer, 531 F.3d at 1352. Additionally, McFadden does not control the outcome

of this case, because it did not address the mens rea requirement for serious drug

offenses under the ACCA or controlled-substance offenses under the career-

offender guidelines. See McFadden, 576 U.S. at __, 135 S. Ct. at 2302. The

district judge did not err in denying Jones’s § 2255 motion.

      AFFIRMED.




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