                                                         [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              January 25, 2006
                                No. 05-13437
                                                             THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                    D. C. Docket No. 04-00588-CR-1-WBH-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

WITHROW WILSON,
                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                               (January 25, 2006)

Before DUBINA, BLACK and HULL, Circuit Judges.

PER CURIAM:

      Withrow Wilson appeals his sentence for possessing a firearm and

ammunition, after previously having been convicted of state and federal offenses

punishable by imprisonment for a term exceeding one year, in violation of 18
U.S.C. §§ 922(g) and 924(a)(2). Wilson asserts the district court erred in

concluding his 1985 Georgia state conviction for trafficking in cocaine was a

“controlled substance offense.” The district court did not err, and we affirm.

      “We review a district court’s application and interpretation of the sentencing

guidelines de novo.” United States v. Murphy, 306 F.3d 1087, 1089 (11th Cir.

2002). Section 2K2.1(a)(2) provides for a base offense level of 24 “if the

defendant committed any part of the instant offense subsequent to sustaining at

least two felony convictions of either a crime of violence or a controlled substance

offense.” U.S.S.G. § 2K2.1(a)(2). The phrase “controlled substance offense” has

the meaning given that term in § 4B1.2(b) and application note 1 of the

commentary to § 4B1.2(b). U.S.S.G. § 2K2.1(a)(2), comment (n.1). Section

4B1.2(b) provides:

      The term “controlled substance offense” means an offense under
      federal or state law, punishable by a term of imprisonment of more
      than 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 substance (or a counterfeit
      substance) with intent to manufacture, import, export, distribute, or
      dispense.

U.S.S.G. § 4B1.2(b). Georgia Code § 16-13-31(a)(1) provides: “Any person who

knowingly sells, manufactures, delivers, or brings into this state or who is

knowingly in possession of 28 grams or more of cocaine . . . commits the felony



                                          2
offense of trafficking in cocaine . . . .” O.C.G.A. § 16-13-31(a)(1).

       In United States v. Madera-Madera, 333 F.3d 1228, 1229-30 (11th Cir.

2003), we considered whether the defendant’s prior drug conviction, under

O.C.G.A. § 16-13-31(e), for possession of 87 grams of methamphetamine,

constituted a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i).1

There, we examined Georgia’s three-tiered statutory scheme for punishing drug

crimes and determined that, under O.C.G.A. § 16-13-31, Georgia considers

possession of 28 grams or more of methamphetamine “trafficking,” and “drug

trafficking . . . is a more serious offense than either simple possession or

possession with intent to distribute.” Id. at 1231-32. We found, “[i]n making

possession of 28 grams of methamphetamine a ‘trafficking’ offense, Georgia’s

trafficking statute necessarily infers an intent to distribute once a defendant

possesses a certain amount of drugs.” Id. at 1232. We also rejected the

defendant’s argument that § 2L1.2’s definition of “drug trafficking offense”

requires the statutory element of intent to distribute be actually present in the

language of the statute of conviction, finding the Sentencing Commission decided

       1
         The phrase “drug trafficking offense” means “an offense under federal, state, or local law
that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2, comment (n.
1(B)(iv)).



                                                 3
not to define a “drug trafficking offense” by its elements. Id. at 1232-34.

      Although we considered whether the defendant’s prior conviction was a

“drug trafficking offense” rather than a “controlled substance offense” in Madera-

Madera, the Guidelines definition of “drug trafficking offense” is virtually

identical to its definition of “controlled substance offense.” See U.S.S.G.

§§ 2L1.2, comment (n. 1(B)(iv)); 4B1.2(b). Because we are bound by our prior

holding in Madera-Madera that a federal court may infer that a conviction under

O.C.G.A. § 16-13-31 includes an intent to distribute, the district court did not err in

finding that Wilson’s 1985 state conviction for trafficking in cocaine was a

controlled substance offense.

      AFFIRMED.




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