             Case: 16-17049    Date Filed: 08/11/2017   Page: 1 of 7


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-17049
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:16-cr-20157-MGC-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

TRACY ANTHONY SCOTT,

                                                            Defendant-Appellant.

                         ________________________

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

                               (August 11, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Tracy Scott is a federal prisoner serving a 140-month sentence of

imprisonment for possessing a controlled substance near a school and possessing a
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firearm as a convicted felon. The district court sentenced Scott as a “career

offender” under § 4B1.1 of the United States Sentencing Guidelines because he

had two prior convictions for “controlled substance offenses,” U.S.S.G.

§ 4B1.2(b), specifically two prior Florida convictions under Fla. Stat. § 893.13(1).

Scott contends that one of these convictions does not qualify as a predicate

conviction under the career-offender guideline because, after 2002, § 893.13

allows for a conviction regardless of whether the defendant knew that the

substance possessed was an illicit controlled substance. While conceding that we

have rejected this same argument, see United States v. Smith, 775 F.3d 1262 (11th

Cir. 2014) (holding that § 893.13(1) is a “controlled substance offense” even

though it lacks an element of mens rea), Scott maintains that Smith is in conflict

with several Supreme Court decisions and with 28 U.S.C. § 994(h). Because we

remain bound by Smith, we affirm Scott’s sentence.

      We review de novo the district court’s decision to classify a defendant as a

career offender under § 4B1.1. United States v. Gibson, 434 F.3d 1234, 1243 (11th

Cir. 2006). A defendant is a career offender if, among other things, he has at least

two prior felony convictions for a “controlled substance offense.”         U.S.S.G.

§ 4B1.1(a). A “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 a counterfeit substance) or the possession of a controlled
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      substance (or a counterfeit substance) with intent to manufacture,
      import, export, distribute, or dispense.

Id. § 4B1.2(b). Under Florida law, the sale, manufacture, or delivery of cocaine, or

the possession of cocaine with the intent to sell, manufacture, or deliver it, is a

second-degree felony punishable by a prison term of up to 15 years. See Fla. Stat.

§§ 893.13(1)(a)1, 775.082(3)(d).         The Florida legislature has expressly

eliminate[d] knowledge of the illicit nature of the controlled substance as an

element of controlled substance offenses.” State v. Adkins, 96 So.3d 412, 415–16

(Fla. 2012).

      In Smith, we held that a prior conviction under § 893.13(1) is a “controlled

substance offense” under U.S.S.G. § 4B1.2(b) even though it lacks an element of

mens rea.      Smith, 775 F.3d at 1267–68.      Reviewing the plain language of

§ 4B1.2(b)’s definition of “controlled substance offense,” we concluded that no

mens rea with respect to the illicit nature of the controlled substance was expressed

or implied in the definition. Id. at 1267. We also found that the presumption in

favor of mental culpability and the rule of lenity did not require us to imply an

element of mens rea in the guideline definition because the text of § 4B1.2(b) was

unambiguous. Id. (“The presumption in favor of mental culpability and the rule of

lenity apply to sentencing enhancements only when the text of the statute or

guideline is ambiguous.”).



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      Smith’s holding squarely forecloses Scott’s current challenge to the

classification of his Fla. Stat. § 893.13 conviction as a “controlled substance

offense” under § 4B1.2(b).     Under our prior-precedent rule, that 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 this court sitting en banc.” United

States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). And that holding means

that Scott’s sentence must be affirmed.

      To avoid that outcome, Scott maintains that Smith is in conflict with several

Supreme Court decisions, but we disagree. First, he contends that Smith conflicts

with Begay v. United States, 553 U.S. 137 (2008). But Smith was decided in 2014,

well after Begay. While Smith did not mention Begay, “a prior panel precedent

cannot be circumvented or ignored on the basis of arguments not made to or

considered by the prior panel.” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015)

(quotation marks omitted). Because there is no “overlooked reason or argument

exception to the prior-panel-precedent rule,” Begay offers Scott no relief from

Smith. Id. Nor, in any event, does Begay, which addressed the definition of

“violent felony” under the Armed Career Criminal Act, “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).




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      Second, Scott argues that Elonis v. United States, 135 S. Ct. 2001 (2015),

and McFadden v. United States, 135 S. Ct. 2298 (2015), show that Smith erred in

holding that mens rea is not an implied element of a “controlled substance offense”

under U.S.S.G. § 4B1.2. But these cases do not involve the Sentencing Guidelines

at all, much less the definition of a “controlled substance offense” in U.S.S.G.

§ 4B1.2.    In McFadden, the Supreme Court interpreted the language of the

Controlled Substance Analogue Act statutes themselves.           135 S. Ct. at 2305.

Similarly, while the Supreme Court opined in Elonis that the omission of mens rea

from a criminal statute does not eliminate a mens rea requirement, Elonis dealt

with a different category of criminal offenses and concerned the elements of proof

necessary for a conviction. See 135 S. Ct. at 2008–12. Notably, neither McFadden

nor Elonis dealt with the issue here and in Smith, namely the construction of a

particular definition in the Sentencing Guidelines in relation to predicate offenses

where the prior conviction explicitly did not require a mens rea element.

      Finally, Scott contends that Smith conflicts with the statutory command of

28 U.S.C. § 994(h).      Section 994(h) directs the Commission to assure that

defendants who have prior convictions for crimes of violence or for offenses

“described in” several federal controlled-substance statutes receive sentences at or

near the maximum authorized term. All of the referenced statutes have an element

of mens rea as to the illicit nature of the drug. Scott argues that, if Smith is correct


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that predicate convictions under § 4B1.2(b)’s definition of “controlled substance

offense” do not require an element of mens rea, the Commission exceeded its

statutory authority under 28 U.S.C. § 994(h) by allowing strict-liability offenses to

be considered for purposes of the career-offender guideline.

      After Scott filed his brief in this Court, however, we rejected the argument

“that a prior conviction under a state statute that does not require knowledge of the

illicit nature of the substance cannot qualify as an offense ‘described in’ the

various federal statutes listed in § 994(h).” United States v. Pridgeon, 853 F.3d

1192, 1200 (11th Cir.), petition for cert. filed, (U.S. July 11, 2017) (No. 17-5135).

We explained in Pridgeon that § 994(h) does not set out “a specific and exclusive

list of predicate crimes that trigger maximal punishment.” Id. Rather, “§ 994

establishes a floor for the career offender category, rather than a ceiling.” Id. The

Commission’s more general authority under § 994(a) allows it “to define

‘controlled substance offense’ to include crimes beyond those listed in § 994(h).”

Id. And that authority includes being able to define “controlled substance offense”

“in a way that includes offenses lacking an element of mens rea regarding the

illicit nature of the controlled substance.” Id. at 1200 & n.3.

      In sum, we conclude that Smith’s holding remains binding because it has not

been overruled or undermined to the point of abrogation. Archer, 531 F.3d at

1352. Under Smith, Scott’s conviction under Fla. Stat. § 893.13 is a controlled-


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substance offense under the Sentencing Guidelines. See Smith, 775 F.3d at 1267–

68. Thus, the district court properly deemed Scott a career offender, and we affirm

his sentence.

      AFFIRMED.




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