             Case: 14-12229     Date Filed: 02/03/2015   Page: 1 of 5


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                 No. 14-12229
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:13-cr-20368-JLK-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

AUNDRICE MOSS,
a.k.a. Nicalaunto Moss,
a.k.a. Dre,

                                                             Defendant-Appellant.

                           ________________________

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

                               (February 3, 2015)

Before TJOFLAT, JULIE CARNES, and BLACK, Circuit Judges.

PER CURIAM:
               Case: 14-12229     Date Filed: 02/03/2015     Page: 2 of 5


      Aundrice Moss (“Defendant”) appeals his 180-month sentence, which the

district court imposed after he pled guilty to possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On

appeal, Defendant argues that the district court erred by enhancing his sentence

under the Armed Career Criminal Act (“ACCA”) because his two prior convictions

for possession of cocaine with the intent to sell or deliver, in violation of Fla. Stat.

§ 893.13(1)(a), did not qualify as ACCA-predicate “serious drug offense[s].” We

disagree, and affirm Defendant’s sentence.

                                       I. Background

      After Defendant entered his guilty plea, the probation office prepared

Defendant’s presentence investigation report (“PSI”). The probation officer

calculated an initial base offense level of 26, under U.S.S.G. § 2K2.1(a)(1),

because Defendant’s offense involved a semi-automatic weapon capable of

accepting a large-capacity magazine and he had at least two prior felony

convictions for a crime of violence or controlled substance offense. Because he

had trafficked in firearms, Defendant received a four-level enhancement under

§ 2K2.1(b)(5), resulting in an offense level of 30. The probation officer also

determined that Defendant was an armed career criminal subject to an offense level

of 33 under § 4B1.4(b)(3)(B), because he had one prior conviction for a violent

felony and three prior convictions for serious drug offenses. The probation officer


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then applied a three-level acceptance-of-responsibility reduction, pursuant to

§ 3E1.1(a) and (b), yielding a total offense level of 30.

      Defendant qualified for a criminal history category of VI, based on both his

numerous criminal convictions and on his armed career criminal status. As

relevant here, the PSI noted that Defendant had two September 2011 convictions

for possession of cocaine with the intent to sell or deliver, in violation of Fla. Stat.

§ 893.13(1)(a). Based on a total offense level of 30 and his criminal history

category of VI, Defendant’s initial guideline range was 168 to 210 months’

imprisonment. However, as an armed career criminal, Defendant was subject to a

statutory minimum 15-year (180-month) term of imprisonment. See 18 U.S.C.

§ 924(e)(1). Thus, Defendant’s guideline range became 180 to 210 months’

imprisonment.

      Prior to and during his sentencing hearing, Defendant objected to the ACCA

sentence enhancement. Defendant argued that his prior § 893.13(1)(a) convictions

did not qualify as ACCA-predicate offenses because they failed to meet that

statute’s definition of “serious drug offense[s].” According to Defendant, his

convictions failed to meet that definition because § 893.13(1)(a) did not require the

defendant’s knowledge of the illicit nature of the controlled substance he

possessed. The district court overruled this objection and sentenced Defendant to

imprisonment for 180 months.


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                                    II. Discussion

      As he did before the district court, Defendant argues on appeal that his two

prior § 893.13(1)(a) convictions do not qualify as ACCA-predicate “serious drug

offense[s].” Defendant contends that, when applying the categorical approach, his

§ 893.13(1)(a) convictions do not fit within the generic federal definition of a

“serious drug offense” because under Florida law, unlike federal law, the State is

not required to prove that the defendant had knowledge of the illicit nature of the

controlled substance he possessed. We review de novo whether a defendant’s prior

conviction qualifies as a predicate offense under the ACCA. United States v.

Smith, 742 F.3d 949, 952 (11th Cir. 2014).

      Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject

to a mandatory minimum, 15-year sentence if he has three prior convictions for a

violent felony or “serious drug offense.” 18 U.S.C. § 924(e)(1). A “serious drug

offense” is defined as “(i) an offense under the Controlled Substances Act, . . . or

(ii) an offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance . . . for

which a maximum term of imprisonment of ten years or more is prescribed by

law[.]” 18 U.S.C. § 924(e)(2)(A)(i), (ii).

      Defendant’s argument that his § 893.13(1)(a) conviction for possessing

cocaine with the intent to sell or deliver is not a “serious drug offense” under the


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ACCA is squarely foreclosed by this Court’s recent precedent. See United States

v. Smith, __ F.3d __, 2014 WL 7250963, at *5 (11th Cir. Dec. 22, 2014) (holding

that a conviction under § 893.13(1) is a “serious drug offense” as defined in 18

U.S.C. § 924(e)(2)(A)). “We are bound by prior panel decisions unless or until we

overrule them while sitting en banc, or they are overruled by the Supreme Court.”

United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011). Accordingly, we

affirm Defendant’s 180-month sentence.

      AFFIRMED.




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