                                                                  [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-14418            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           JUNE 7, 2012
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 7:10-cr-00007-WLS-TQL-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

WILLIE STEPHENS,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Georgia
                                 ________________________

                                            (June 7, 2012)

Before TJOFLAT, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

         Willie Stephens was convicted on a plea of guilty of possession with intent
to distribute more than 500 grams of cocaine, in violation of 21 U.S.C.

§ 841(a)(1). At sentencing, the district court classified Stephens as a career

offender, pursuant to U.S.S.G. § 4B1.1(a), and sentenced him as such to a prison

term of 188 months1 because he was over 18 years of age, the instant conviction

was for a controlled substance offense, and he previously had been convicted of

two controlled substance offenses in the Broward County, Florida Circuit Court;

to-wit, a 1999 conviction for trafficking cocaine and a 2008 conviction for

delivery of cocaine, in violation of Fla. Stat. § 893.13. Stephens now appeals his

sentence, claiming that the district court erred in classifying him as a career

offender. We find no error and affirm.

       Stephens argues that the court erred in treating his 2008 offense as predicate

career offender offense because a judge of the U.S. District Court for the Middle

District of Florida and a judge of the Twelfth Judicial Circuit of Florida have

declared § 893.13 unconstitutional, and the Florida Supreme Court has accepted

jurisdiction in the latter case, Florida v. Atkins, No. SC11-1878, 71 So.3d 117,

2011 WL 4925888 (Fla. Oct. 12, 2011). Neither trial court decision is controlling

here; hence, the district court did not err in using the 2008 offense as a predicate



       1
        The sentence was at the bottom of the Guidelines sentence range of 188 to 235 months’
imprisonment.

                                              2
offense under U.S.S.G. § 4B1.1(a).2 Stephens argues that the court erred in using

his 1999 conviction as a predicate offense because he was sentenced as a youthful

offender. The problem with this argument is that his lawyer conceded at

sentencing that the conviction qualified as a predicate career offender offense.

Stephens is bound by that concession. His sentence is, accordingly,

       AFFIRMED.




       2
          Because Stephens did not present this argument to the district court we review it under
the plain error standard. There could be no plain error here because no error occurred.

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