              Case: 18-14205    Date Filed: 06/04/2020   Page: 1 of 5



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-14205
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:18-cr-00164-SDM-AEP-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

KENTON CAMPBELL,

                                                             Defendant-Appellant.

                          ________________________

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

                                  (June 4, 2020)

Before MARTIN, ROSENBAUM and MARCUS, Circuit Judges.

PER CURIAM:

      Kenton Campbell appeals his 70-month sentence, imposed following his

conviction pursuant to a guilty plea for possessing a firearm as a convicted felon.

On appeal, Campbell argues that the district court plainly erred by determining that
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his Florida conviction, under Fla. Stat. § 893.13, for possession of cocaine with

intent to sell qualified as a “controlled substance offense” under the U.S. Sentencing

Guidelines. After careful review, we affirm.

      Whether a prior conviction qualifies as a “controlled substance offense” for

purposes of the Guidelines is a question of law, which we ordinarily review de novo.

United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017). However, we review

for plain error a sentencing challenge raised for the first time on appeal. Id. To

establish plain error, the defendant must show (1) an error, (2) that is plain, and (3)

that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276

(11th Cir. 2007). If the defendant satisfies these conditions, we may exercise our

discretion to recognize the error only if it seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id. Campbell concedes in this appeal that

he did not object to the district court’s Guideline calculations, and thus, that plain

error review applies.

      For an error to be plain, it must be contrary to the applicable statute, rule, or

on-point precedent. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th

Cir. 2003). There is no plain error where the explicit language of a statute or rule

does not specifically resolve an issue and there is no precedent from the Supreme

Court or this Court directly resolving it. Id. A prior panel’s holding is binding on

all subsequent panels unless and until it is overruled or undermined to the point of

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abrogation by the Supreme Court or by this Court sitting en banc. United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

      Here, we are bound by controlling precedent to hold that a conviction under

Fla. Stat. § 893.13 qualifies as a “controlled substance offense” under the Sentencing

Guidelines. The Guidelines assign a base offense level of 22 for a defendant

convicted of the unlawful possession of a firearm if the firearm is a semiautomatic

firearm that is capable of accepting a large capacity magazine and if “the defendant

committed any part of the instant offense subsequent to sustaining one felony

conviction of either a crime of violence or a controlled substance offense.” U.S.S.G.

§ 2K2.1(a)(3). Under the Guidelines, a “controlled substance offense” is defined 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.” U.S.S.G. §§

2K2.1, comment. (n.1), 4B1.2(b).

      Fla. Stat. 893.13 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). In United States v. Smith, we held that the definition of a

controlled substance offense under the Guidelines did not require “that a predicate

state offense include[] an element of mens rea with respect to the illicit nature of the

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controlled substance,” and that a violation of Fla. Stat. § 893.13 qualified as a

controlled substance offense under the Guidelines. 775 F.3d 1262, 1268 (11th Cir.

2014). We also held that a violation of Fla. Stat. § 893.13 qualified as a “serious

drug offense” under the Armed Career Criminal Act (“ACCA”). Id.

      We previously granted Campbell’s unopposed motion to stay further appellate

proceedings pending the Supreme Court’s decision in Shular v. United States, 140

S. Ct. 779 (2020), which Campbell said, could have invalidated this Court’s previous

ruling in Smith that a violation of Fla. Stat. § 893.13 constitutes a “controlled

substance offense” under the Guidelines. The Supreme Court has now issued its

decision in Shular, and unanimously affirmed our Court’s holding that a violation of

Fla. Stat. § 893.13 constituted a “serious drug offense” under the ACCA. Shular,

140 S. Ct. at 782. The Supreme Court reasoned that the ACCA did not require that

the state offense match the elements of generic federal offenses; rather, a state

offense need only involve the conduct specified in the federal statute -- namely,

“manufacturing, distributing, or possessing with intent to manufacture or distribute,

a controlled substance,” in the case of the ACCA. Id. (quotations omitted). The

defendant in Shular argued that his Florida drug conviction was not a serious drug

offense because Florida law, unlike the generic offenses named in the ACCA, did

not include a mens rea of knowledge that the substance was illicit. Id.




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      Now that the Supreme Court has issued its decision in Shular, we are

compelled to reject Campbell’s argument in this appeal. Campbell has not shown

that the district court erred, much less plainly erred, in calculating a base offense

level of 22 based on his Florida conviction for possession with intent to sell cocaine.

See U.S.S.G. § 2K2.1(a)(3). Our binding precedent in Smith, which ruled that a

violation of Fla. Stat. § 893.13 is a controlled substance offense under the

Guidelines, forecloses his argument that a violation of Fla. Stat. § 893.13 cannot be

used to calculate his base offense level under § 2K2.1(a)(3) because it lacks a mens

rea element. See Smith, 775 F.3d at 1268; Archer, 531 F.3d at 1352. Moreover, to

the extent Campbell previously argued to us that the Supreme Court’s ruling in

Shular might overrule Smith’s holding, the Supreme Court in Shular instead

affirmed that a violation of Fla. Stat. § 893.13 qualified as a “serious drug offense”

under ACCA, and its holding was consistent with our reasoning that a violation of

Fla. Stat. § 893.13 qualified as a controlled substance offense under the Guidelines.

See Shular, 140 S. Ct. at 782; Smith, 775 F.3d at 1268. Smith, therefore, remains

controlling after the Supreme Court’s ruling in Shular, and Campbell cannot show

that the district court’s calculation of the base offense level constituted plain error.

See Lejarde-Rada, 319 F.3d at 1290.

      AFFIRMED.




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