           Case: 14-11332   Date Filed: 03/09/2015    Page: 1 of 4


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11332
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-cr-20513-UU-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellant,

versus

JESUS PEREZ-PRADO,

                                               Defendant - Appellee.

                      ________________________

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

                             (March 9, 2015)

Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      The government appeals the 48-month sentence imposed on Jesus Perez-

Prado after he pled guilty to being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1).      At sentencing, Mr. Perez-Prado objected to the base

offense level calculation contained in his presentence investigation report.

Specifically, Mr. Perez-Prado argued that a base offense level of 20 pursuant to §

2K2.1(a)(4)(A) of the Sentencing Guidelines was not merited because his prior

conviction for possession with intent to sell or deliver marijuana under Florida

Statute § 893.13(1)(a)(2) was not a “controlled substance offense” as defined in §

4B1.2(b) of the Sentencing Guidelines. The district court agreed, sustaining his

objection to the PSI and assigning Mr. Perez-Prado the lower base offense level of

14 pursuant to § 2K2.1(a)(6).        On appeal, the government argues that this

calculation was error. After careful review of the parties’ briefs, we vacate and

remand for resentencing.

      We review the district court’s application of the Sentencing Guidelines de

novo. See United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011). We

review de novo whether a defendant’s prior conviction qualifies as a “controlled

substance offense” under the Sentencing Guidelines. See United States v. Harris,

586 F.3d 1283, 1284 (11th Cir. 2009) (reviewing de novo whether a defendant’s

prior conviction qualified as a crime of violence under the Sentencing Guidelines

for purposes of applying U.S.S.G. § 2K2.1(a)(4)(A)).


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      Under the Sentencing Guidelines, a defendant convicted of possession of a

firearm pursuant to § 922(g)(1) ordinarily receives a base offense level of 14. See

U.S.S.G. § 2K2.1(a)(6) & comment n.3. In relevant part, the Guidelines provide

that the base offense level increases to 20 if the defendant committed the offense

subsequent to sustaining one felony conviction for a “controlled substance

offense.” See U.S.S.G. § 2K2.1(a)(4)(A). For purposes of applying § 2K2.1(a)(4),

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 a counterfeit
             substance) or the possession of a controlled substance (or
             a counterfeit substance) with intent to manufacture,
             import, export, distribute, or dispense.

Id. at § 4B1.2(b). See § 2K2.1, comment n.1.

      In United States v. Smith, No. 13-15227, 2014 WL 7250963, slip op. at 11

(11th Cir. Dec. 22, 2014), we recently held that a conviction under § 893.13(1) of

the Florida Statutes constitutes a “controlled substance offense” as defined in §

4B1.2(b) of the Sentencing Guidelines. Accordingly, we hold, for the reasons

substantially stated in our opinion in Smith, that it was error for the district court to

conclude that Mr. Perez-Prado’s 2011 conviction under § 893.13(1)(a)(2) did not

qualify as a “controlled substance offense” pursuant to § 4B1.2(b). We therefore

vacate Mr. Perez-Prado’s sentence and remand for resentencing.


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VACATED AND REMANDED.




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