           Case: 18-12109   Date Filed: 04/02/2019   Page: 1 of 16


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12109
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:17-cr-00245-SDM-AAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

WILLIAM JEROME HOWARD, JR.,

                                                          Defendant-Appellant.

                       ________________________

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

                              (April 2, 2019)

Before MARCUS, BRANCH and HULL, Circuit Judges.

PER CURIAM:
              Case: 18-12109     Date Filed: 04/02/2019   Page: 2 of 16


      After pleading guilty, William Jerome Howard, Jr., appeals his 168-month

sentence for possession with intent to distribute 28 grams or more of cocaine base,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). Howard raises the

following issues for the first time on appeal. Howard argues that the district court

plainly erred when it subjected him to: (1) a career offender sentence enhancement

under the United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1; and (2) a

ten-year statutory mandatory minimum term of imprisonment pursuant to an

enhancement under 21 U.S.C. § 841(b)(1)(B). Howard contends that he does not

qualify for either of those enhancements because his prior Florida drug

convictions, under Fla. Stat. § 893.13, do not constitute (1) “controlled substance

offenses” under the career offender guidelines or (2) “felony drug offenses” for

purposes of the mandatory minimum statute.

      After careful review of the briefs and record, we affirm.

                         I. FACTUAL BACKGROUND

A.    Offense Conduct

      In January 2017, a law enforcement officer attempted to stop a car for

running a red light. Instead of pulling over, the driver, who was later identified to

be Howard, drove away from the officer, but eventually spun out of control before

coming to a stop. Howard then abandoned the car and fled on foot with a cloth bag

in his hand. Additional officers arrived and eventually arrested Howard. During a


                                          2
               Case: 18-12109        Date Filed: 04/02/2019      Page: 3 of 16


search incident to Howard’s arrest, the officers looked in Howard’s cloth bag and

found one plastic bag containing approximately 94 grams of cocaine base and

another plastic bag containing approximately 28 grams of cocaine.

       As a result, a grand jury indicted Howard on one count of possessing with

intent to distribute 28 grams or more of cocaine base, in violation of

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Howard initially pled not guilty.

B.     Prior Convictions

       As relevant background to the enhancements, in July 2009, Howard was

arrested and charged with possessing 28 grams or more but less than 200 grams of

cocaine. In March 2012, Howard pled guilty to one felony count of possession of

cocaine with intent to sell, in violation of Fla. Stat. § 893.13(1)(a)(1).1 In June

2012, Howard was sentenced to 30 months’ imprisonment, followed by 24 months’

community control and 6 months’ probation, to run concurrently with his 2011

offenses below.

       In January 2011, Howard sold 2.8 grams of crack cocaine to an officer. He

committed this offense while on bond and awaiting trial for his 2009 felony

offense. In May 2011, Howard fled from law enforcement officers, and officers

executed a search warrant at Howard’s residence the next day. Officers found 25.9



       1
        In his brief on appeal, Howard indicates which subsections of Fla. Stat. § 893.13 form
the bases of all of his prior drug convictions.
                                               3
                Case: 18-12109       Date Filed: 04/02/2019       Page: 4 of 16


grams of cocaine in a coat in Howard’s closet and .2 grams of cocaine base in the

dining room. In May 2011, Howard was arrested and charged with two counts of

sale of cocaine, in violation of Fla. Stat. § 893.13(1)(a)(1), three counts of

possession of cocaine, in violation of Fla. Stat. § 893.13(6)(a), and one count of

fleeing or eluding, in violation of Fla. Stat. § 316.1935. In March 2012, Howard

pled guilty to all six crimes. In June 2012, Howard was sentenced on each crime

to 30 months’ imprisonment, followed by 24 months’ community control and 6

months’ probation, all to run concurrently with each other and with his 2009

offense above.

       In February 2014, Howard was released from prison. Howard’s term of

community control was converted to probation in February 2015, and his probation

was terminated in May 2015.

       The parties refer to Howard’s prior Florida drug offenses in 2009 and 2011

collectively as the 2012 convictions because he was sentenced on all of them in

2012. However, for clarity, we separately refer to his prior conviction for one

count of possession of cocaine with intent to sell as the “2009 offense” and his

prior convictions for two counts of sale of cocaine and three counts of possession

of cocaine as the “2011 offenses.”2


       2
        In the district court and on appeal, Howard has not disputed that he actually has these
convictions. Rather, he contends they do not qualify as predicates for the sentencing
enhancements in his case.
                                                4
              Case: 18-12109     Date Filed: 04/02/2019   Page: 5 of 16




C.    Guilty Plea

      Before Howard pled guilty to the instant federal drug offense, the

government filed an information and notice of prior convictions, pursuant to 21

U.S.C. §§ 841(b)(1)(B) and 851, charging that Howard was subject to enhanced

penalties based on his prior Florida felony drug convictions. Specifically, the

§ 851 notice stated that Howard was convicted of his 2011 offenses, namely two

counts of selling cocaine, in violation of Fla. Stat. § 893.13(1)(a)(1), and three

counts of possessing cocaine, in violation of Fla. Stat. § 893.13(6)(a). The § 851

notice stated that, because Howard’s five 2011 offenses were felony drug offenses

within the meaning of 21 U.S.C. § 841(b)(1)(B), Howard faced a statutory

mandatory minimum term of ten years’ imprisonment for his instant federal drug

charge.

      Subsequently, Howard decided to plead guilty. At his change-of-plea

hearing, Howard stated that he was not pleading guilty pursuant to a plea

agreement. The magistrate judge explained the effect that entry of a guilty plea

would have on Howard’s sentence. In particular, the magistrate judge advised

Howard that (1) the government had filed a § 851 notice of sentence enhancement

asserting that Howard had prior convictions for felony drug offenses, and (2) if

Howard pled guilty, he would be subject to a statutory mandatory minimum term


                                          5
              Case: 18-12109     Date Filed: 04/02/2019   Page: 6 of 16


of ten years’ imprisonment. The magistrate judge asked Howard if he understood

the punishment consequences of his plea, and Howard responded yes. At that

time, Howard confirmed that he previously was convicted of at least one felony

drug offense, namely the sale of cocaine.

      The magistrate judge then found that Howard was fully competent and

capable of entering an informed plea, he was aware of the consequences of the plea

and the nature of the charges, and his guilty plea was knowing and voluntary. The

magistrate judge recommended that Howard’s guilty plea be accepted. Without

objection, the district court accepted Howard’s guilty plea and adjudged him

guilty.

D.    Sentencing

      Howard’s presentence investigation report (“PSI”) assigned him a total

offense level of 34. His total offense level included an enhancement for being a

career offender under U.S.S.G. § 4B1.1 because he had two prior “controlled

substance offenses.” See U.S.S.G. § 4B1.1(a) (stating, in relevant part, that a

defendant is a career offender if he has at least two prior felony convictions for a

“controlled substance offense”). In fact, Howard had three prior Florida drug

convictions for (1) possession of cocaine with intent to sell (one count in 2009), in

violation of Fla. Stat. § 893.13(1)(a)(1), and (2) sale of cocaine (two counts in

2011), in violation of Fla. Stat. § 893.13(1)(a)(1), that were felony controlled


                                            6
                Case: 18-12109        Date Filed: 04/02/2019       Page: 7 of 16


substance offenses. Howard’s criminal history category was IV. His status as a

career offender increased his criminal history category to VI.

       Further, the PSI indicated that the § 841(b)(1)(B) enhancement required only

one prior “felony drug offense” conviction to trigger his statutory mandatory

minimum term of imprisonment of ten years to life. See 21 U.S.C. § 841(b)(1)(B)

(stating that where an individual violates § 841(a)(1) after a prior conviction for a

“felony drug offense” has become final, the mandatory minimum corresponding

term of imprisonment becomes ten years to life). Based on a total offense level of

34 and a criminal history category of VI, Howard’s advisory guidelines range was

262 to 327 months’ imprisonment. 3

       Prior to sentencing, Howard filed a sentencing memorandum and motion for

a downward variance, in which he admitted that his 2009 possession of cocaine

with intent to sell offense and 2011 sale of cocaine offenses “qualif[ied] as

controlled substance[] offenses under USSG § 4B1.1.” Howard argued that a

sentence within his advisory guidelines range resulting from the career offender

enhancement would result in an unjust sentence contrary to a reasoned

consideration of the 18 U.S.C. § 3553 factors, and, therefore, he requested a



       3
         Without the career offender or § 841(b)(1)(B) enhancement, Howard would have had a
total offense level of 21 and a criminal history category of IV, resulting in an advisory guidelines
range of 57 to 71 months’ imprisonment. If only the § 841(b)(1)(B) enhancement applied for a
felony drug offense, his guidelines range would have been the statutory mandatory minimum
sentence of 120 months’ imprisonment. See U.S.S.G. § 5G1.1(b).
                                                 7
              Case: 18-12109    Date Filed: 04/02/2019    Page: 8 of 16


downward variance. Howard stated that the statutory mandatory minimum term of

ten years’ imprisonment would be more than sufficient but not greater than

necessary to satisfy the purposes of sentencing in § 3553. Also, Howard’s counsel

stated that he remained hopeful that the government would withdraw the

§ 841(b)(1)(B) enhancement, and if that happened, defense counsel would propose

that the district court sentence Howard to a sentence near the five-year mandatory

minimum term of imprisonment applicable without the statutory enhancement.

      At sentencing, Howard stated that he had no objections to the PSI’s facts or

guidelines calculations. In particular, Howard said that he had no objection to his

total offense level of 34 and criminal history category of VI as calculated in the

PSI. The district court adopted the PSI’s facts and guidelines calculations.

Howard argued that, based on the 18 U.S.C. § 3553(a) sentencing factors, the

district court should impose “the minimum sentence that the [c]ourt at this point is

authorized to impose . . . and that would be a sentence of ten years.”

      After hearing from the parties and considering the advisory guidelines range,

the career offender provisions, the § 3553(a) factors, and Howard’s sentencing

memorandum, the district court varied downward by 94 months from the low end

of the guidelines range (262 to 327 months) and imposed a sentence of 168

months’ imprisonment. Neither Howard nor the government objected to the

sentence imposed or the manner in which the sentence was announced.


                                          8
              Case: 18-12109     Date Filed: 04/02/2019   Page: 9 of 16


                                 II. DISCUSSION

      On appeal and for the first time, Howard argues that the district court plainly

erred in finding that his prior Florida drug convictions, under Fla. Stat. § 893.13,

qualified as either “controlled substance offenses” under U.S.S.G. § 4B1.1’s career

offender provision or “felony drug offenses” under the 21 U.S.C. § 841(b)(1)(B)

enhancement. He argues that § 4B1.2’s definition of a “controlled substance

offense” and 21 U.S.C. § 802(44)’s definition of a “felony drug offense”

encompass only substances that are federally controlled, whereas Fla. Stat.

§ 893.13 criminalizes substances that are both federally and state controlled but

also some substances that are only state controlled. Relying on the categorical

approach, Howard contends that the term “controlled substance” in Fla. Stat.

§ 893.13 is indivisible and overbroad, and thus this Court must presume that his

prior Florida drug convictions all rested upon illegal substances that are not

federally controlled. Therefore, Howard argues that, because such Florida drug

offenses do not satisfy the definition of a “controlled substance offense” or “felony

drug offense,” the district court plainly erred in sentencing him as a career offender

and under the § 841(b)(1)(B) enhancement.

A.    Standard of Review

      We generally review the application of law to sentencing issues de novo.

United States v. Mejias, 47 F.3d 401, 403 (11th Cir. 1995). However, where a


                                          9
              Case: 18-12109      Date Filed: 04/02/2019     Page: 10 of 16


defendant raises a sentencing argument for the first time on appeal, we review only

for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

Under the plain error rule, we will reverse a district court’s decision only if there

is: “(1) error, (2) that is plain, [] (3) that has affected the defendant’s substantial

rights,” and (4) that “seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” United States v. Hesser, 800 F.3d 1310, 1324 (11th Cir.

2015). “An error is plain if it is obvious and clear under current law.” United

States v. Eckhardt, 466 F.3d 938, 948-49 (11th Cir. 2006) (concluding that

“[b]ecause neither this Circuit nor any other has published an opinion addressing

this issue, the district court did not commit plain error” when it imposed a

sentencing enhancement). “When the explicit language of a statute or rule does

not specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks omitted).

B.     Career Offender Enhancement

       Under U.S.S.G. § 2D1.1, the base offense level for Howard’s instant federal

offense of possession with the intent to distribute 28 grams of more of cocaine

base, in violation of 21 U.S.C. § 841(a)(1), is 24. See U.S.S.G. § 2D1.1(c)(8).

However, that offense level automatically increases to a level dictated by the chart

found in § 4B1.1(b) if the defendant qualifies as a career offender under


                                            10
               Case: 18-12109       Date Filed: 04/02/2019       Page: 11 of 16


§ 4B1.1(a). U.S.S.G. § 4B1.1(a) & (b). Similarly, a career offender’s criminal

history category is always VI. Id. § 4B1.1(b).

       A defendant is a career offender under the Guidelines if: (1) he was at least

18 years old at the time he committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a “crime of violence” or a

“controlled substance offense”; and (3) he has at least two prior felony convictions

for either a “crime of violence” or a “controlled substance offense.” Id.

§ 4B1.1(a). The Guidelines define a “controlled substance offense” as “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.” Id. § 4B1.2(b) (emphasis

added).

       Howard’s relevant drug convictions are under Fla. Stat. § 893.13(1)(a),

which provides that “a person may not sell, manufacture, or deliver, or possess

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

§ 893.13(1)(a).4 This Court expressly held in United States v. Smith, 775 F.3d




       4
         Howard does not dispute that his drug convictions are all felonies under Florida law and
punishable by more than one year of imprisonment. For example, a violation of § 893.13(1)(a)
involving cocaine is a second-degree felony, punishable by up to 15 years’ imprisonment.
Fla. Stat. § 893.13(1)(a)(1); Fla. Stat. § 775.082(3)(d); Fla. Stat. § 893.03(2)(a)(4).
                                               11
             Case: 18-12109      Date Filed: 04/02/2019    Page: 12 of 16


1262, 1268 (11th Cir. 2014), that a drug conviction under Fla. Stat. § 893.13(1) is a

“controlled substance offense” under the career offender provision in U.S.S.G.

§ 4B1.2(b). See also United States v. Pridgeon, 853 F.3d 1192, 1197-98 (11th

Cir.) (following Smith), cert. denied, 138 S. Ct. 215 (2017). In Smith, the

defendant was sentenced as a career offender under § 4B1.1(a) because his prior

Florida convictions for possession of marijuana with intent to sell and possession

of cocaine with intent to sell, both in violation of Fla. Stat. § 893.13(1)(a), were

“controlled substance offenses.” 775 F.3d at 1265. In addressing the defendant’s

argument, this Court determined that the definition of a “controlled substance

offense” under § 4B1.2(b) did not require that a predicate state offense include an

element of mens rea with respect to the illicit nature of the controlled substance,

and, therefore, Fla. Stat. § 893.13(1) qualified as a “controlled substance offense.”

Id. at 1268. Smith involved the same definition of “controlled substance offense”

in § 4B1.2(b) that applies to Howard’s case. See Smith, 775 F.3d at 1267-68;

U.S.S.G. § 4B1.2(b) (2016).

      Here, Howard’s challenge to the district court’s determination that his prior

convictions under Fla. Stat. § 893.13(1)(a)(1) constitute “controlled substances

offenses” is precluded by our binding precedent in Smith. See id. We recognize

that Howard contends that the prior panel precedent rule is of little value in his

case because this Court has not considered his particular argument that Fla. Stat.


                                          12
                 Case: 18-12109       Date Filed: 04/02/2019      Page: 13 of 16


§ 893.13 is indivisible and criminalizes substances that are not federally

controlled.5 However, “a prior panel’s 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 by this court sitting en banc.” United States v. Archer, 531 F.3d

1347, 1352 (11th Cir. 2008). “[A] prior panel precedent cannot be circumvented

or ignored on the basis of arguments not made to or considered by the prior panel.”

Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006).

       In light of our binding precedent, the district court properly concluded that

Howard’s prior Florida 2009 possession of cocaine with intent to sell offense and

2011 sale of cocaine offenses, all violations of Fla. Stat. § 893.13(1)(a)(1),

qualified as “controlled substance offenses” under U.S.S.G. § 4B1.2(b). See

Smith, 775 F.3d at 1268. Because Howard had at least two convictions for

“controlled substance offenses,” the district court did not err in determining that

Howard was a career offender under § 4B1.1. 6


       5
         We reject Howard’s argument that “controlled substance” under § 4B1.2 refers only to
those illegal substances that are federally controlled. Instead, § 4B1.2 explicitly refers to
“controlled substance offense” as an “offense under federal or state law.” U.S.S.G. § 4B1.2(b).
In any event, even if the text of § 4B1.2 is somehow ambiguous elsewhere as Howard argues, the
main decision in this regard that Howard cites is materially distinguishable because cocaine is
both federally and state controlled and his prior Florida convictions were for cocaine-related
crimes, whereas the decision Howard cites involved a state controlled substance that was not
federally controlled. See, e.g., United States v. Townsend, 897 F.3d 66, 68, 74-75 (2d Cir. 2018)
(concluding that a defendant’s prior state conviction for the sale of Human Chorionic
Gonadotropin (“HCG”) could not be a predicate offense for an enhanced sentence under
U.S.S.G. § 2K2.1(a) because the sale of HCG is only criminalized by the state).
       6
           Howard actually has three qualifying controlled substance offenses–two sale of cocaine
                                                 13
               Case: 18-12109       Date Filed: 04/02/2019        Page: 14 of 16


C.     21 U.S.C. § 841(b)(1)(B) Enhancement

       Returning to Howard’s instant federal offense, we discuss the relevant

statutory mandatory minimum sentence. Howard was convicted of possession with

intent to distribute 28 grams or more of cocaine base, in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). Ordinarily, the penalty for Howard’s

conviction under § 841(a)(1) is a term of imprisonment of 5 to 40 years. 21 U.S.C.

§ 841(b)(1)(B)(iii). However, § 841(b)(1)(B) provides that where an individual

violates § 841(a)(1) after a prior conviction for a “felony drug offense” has become

final, the mandatory minimum corresponding term of imprisonment becomes ten

years to life. Id. § 841(b)(1)(B).

       A “felony drug offense” is defined as “an offense that is punishable by

imprisonment for more than one year under any law of the United States or of a

State or foreign country that prohibits or restricts conduct relating to narcotic

drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21

U.S.C. § 802(44) (emphasis added). Cocaine is a narcotic drug. Id. § 802(17)(D).

To support a § 841(b)(1)(B) statutory mandatory minimum sentence, the

government must file an information notifying the defendant of the enhancement

and the prior convictions upon which it is based. 21 U.S.C. § 851(a)(1). The

government undisputedly did that in this case.


convictions and one possession of cocaine with intent to sell conviction.
                                                14
               Case: 18-12109       Date Filed: 04/02/2019      Page: 15 of 16


       Here, Howard has not demonstrated that the district court erred, plainly or

otherwise, in determining that his five 2011 offenses for the sale and possession of

cocaine qualified as “felony drug offenses” for purposes of the § 841(b)(1)(B)

enhancement. 7 A “felony drug offense” under § 802(44) is defined to include an

offense that is punishable by imprisonment for more than one year under any state

law that prohibits conduct relating to narcotic drugs. 21 U.S.C. § 802(44).

       Howard’s 2011 offenses were under both Fla. Stat. § 893.13(1)(a)(1)

prohibiting the sale of cocaine and Fla. Stat. § 893.13(6)(a) prohibiting the

possession of cocaine. Fla. Stat. §§ 893.13(1)(a), (6)(a). A violation of

§ 893.13(1)(a)(1) involving cocaine is punishable by up to 15 years’ imprisonment,

and a violation of § 893.13(6)(a) involving cocaine is punishable by up to 5 years’

imprisonment. Fla. Stat. §§ 893.13(1)(a)(1), (6)(a); Fla. Stat. §§ 775.082(3)(d),

(e); Fla. Stat. § 893.03(2)(a)(4). Therefore, the district court did not err in

determining that Howard was subject to a ten-year statutory mandatory minimum

term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B). 8




       7
        The government gave the § 851 notice as to the five 2011 offenses but not as to the one
2009 offense.
       8
         Alternatively, the government argues that Howard is not entitled to relief because he
invited the district court to sentence him as a career offender and pursuant to the enhancement
under § 841(B)(1)(b). We need not address this argument. Even if Howard invited his sentence
enhancements, Howard has not shown that the district court erred in imposing them.
                                               15
      Case: 18-12109   Date Filed: 04/02/2019   Page: 16 of 16


                       III. CONCLUSION

For the reasons stated, we affirm Howard’s 168-month sentence.

AFFIRMED.




                                16
