           Case: 14-13299   Date Filed: 06/09/2015   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13299
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20014-WJZ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

TRAVIS LAMONT SMITH,
a.k.a. Hound,

                                                         Defendant-Appellant.

                      ________________________

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

                              (June 9, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 14-13299     Date Filed: 06/09/2015    Page: 2 of 4


      Travis Lamont Smith appeals his sentence of 188 months’ imprisonment,

imposed at the upper end of advisory guidelines range, after pleading guilty to one

count of conspiracy to possess with intent to distribute heroin and crack cocaine, in

violation of 21 U.S.C. § 846. On appeal, Smith argues that he was improperly

sentenced as a career offender under U.S.S.G. § 4B1.1(a) because his three prior

convictions under section 893.13(1) of the Florida Statutes were not “controlled

substance offenses” within the meaning of the career offender provision. Smith

argues that a prior conviction can only be a “controlled substance offense” if it is

“substantially similar” to the federal drug trafficking definition. Unlike federal law,

his convictions under section 893.13(1) did not have a mens rea element, so they

could not be “controlled substance offenses.” He also argues that his prior

offenses were related, and thus should not be counted separately, because the

conduct in each was essentially the same, and because two of the three were

consolidated for purposes of plea and sentencing.

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

career offender under U.S.S.G. § 4B1.1. United States v. Gibson, 434 F.3d 1234,

1243 (11th Cir. 2006). Sentencing arguments raised for the first time on appeal are

reviewed only for plain error. United States v. Bonilla, 579 F.3d 1233, 1238 (11th

Cir. 2009).




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      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 defendant will have “two prior felony convictions” if he was convicted before

committing the current offense and if at least two of the sentences are counted

separately under the Guidelines. Id. § 4B1.2(c). Prior sentences always are

counted separately if imposed for offenses that were separated by an intervening

arrest—that is, the defendant was arrested for the first offense before committing

the second. Id. § 4A1.2(a)(2). 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 substance (or
             a counterfeit substance) with intent to manufacture,
             import, export, distribute, or dispense.

Id. § 4B1.2(b).

      Florida law punishes the sale, manufacture, delivery, or possession with

intent to sell, manufacture, or deliver, of cocaine as a second-degree felony. See

Fla. Stat. § 893.13(1)(a)(1). Doing the same with marijuana within 1000 feet of a

school is also a second-degree felony. See id. § 893.13(1)(c)(2). Second-degree

felonies are punishable by up to 15 years of imprisonment. Id. § 775.082(3)(d).

We have previously determined that a conviction under section 893.13(1) is a




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“controlled substance offense” under § 4B1.2(b) in United States v. Smith, 775

F.3d 1262, 1267–68 (2014).

      We have already rejected the mens rea argument that Smith raises for the

first time on appeal, so his argument lacks merit even if it had been preserved. See

Smith, 775 F.3d at 1267. Here, Smith was properly sentenced as a career offender

because his prior marijuana and cocaine convictions were offenses under state law,

punishable by a term of imprisonment exceeding one year, and concerned the

distribution or dispensing, or possession with intent to distribute or dispense, of a

controlled substance. See Smith, 775 F.3d at 1267–68; see also U.S.S.G.

§ 4B1.2(b). Smith’s convictions were based on three different arrests committed

before the offense on appeal, so the district court properly concluded that Smith

had two or more prior felonies, even if the conduct in each was similar. U.S.S.G.

§ 4B1.2(c); see id. § 4A1.2(a)(2). We affirm.

      AFFIRMED.




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