              Case: 16-10981    Date Filed: 02/21/2017   Page: 1 of 3


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                  No. 16-10981
                              Non-Argument Calendar
                            ________________________

                   D.C. Docket No. 8:14-cr-00476-EAK-MAP-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

TOM KELLY, JR.,
a.k.a. Thomas Kelly, Jr.,

                                                             Defendant-Appellant.

                            ________________________

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

                               (February 21, 2017)

Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
               Case: 16-10981     Date Filed: 02/21/2017    Page: 2 of 3


      Tom Kelly Jr., appeals his sentence of 180 months for conspiring to possess

with intent to distribute cocaine base and a substance containing cocaine, 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), 841(b)(1)(C), 846; and possessing a firearm

and ammunition as a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e). Kelly argues

that his prior convictions in a Florida court for selling cocaine, Fla. Stat.

§ 893.13(1), do not qualify as “serious drug offenses.” See 18 U.S.C. § 924(e). We

affirm.

      Kelly’s challenge to the enhancement of his sentence is foreclosed by United

States v. Smith, 775 F.3d 1262 (11th Cir. 2014). Like Kelly, the defendant in Smith

argued that his prior convictions for drug offenses did not qualify as predicate

offenses because under Section 893.13 of the Florida Statutes did not require proof

as an element of the crime that the defendant knew the illegal nature of the

controlled substance and because a mens rea element had to be implied based on

the presumption in favor of mental culpability and the rule of lenity. Id. at 1266–

67. Those arguments “fail[ed],” we concluded, because “[n]o element of mens rea

with respect to the illicit nature of the controlled substance is expressed or implied

by [the] definition” of “serious drug offense.” Id. at 1267. “Serious drug offense”

is defined unambiguously as “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


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prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). “Section 893.13(1) of the Florida

Statutes is . . . a ‘serious drug offense,’” Smith, 775 F.3d at 1268, and Kelly’s

multiple prior convictions under that statute qualify as predicate offenses under the

Armed Career Offender Act. See 18 U.S.C. § 924(e)(1). Under our longstanding

prior panel precedent rule, Smith “is binding on all subsequent panels unless and

until it is overruled or undermined to the point of abrogation by the Supreme Court

or by this court sitting en banc.” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015)

(quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)). Smith did

not address the argument Kelly makes that his prior convictions do not count as

serious drug offenses because they do not require proof of remuneration, but “a

prior panel precedent cannot be circumvented or ignored on the basis of arguments

not made to or considered by the prior panel,” id. (quoting Tippitt v. Reliance

Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006)). The district court

correctly sentenced Kelly as an armed career offender.

      We AFFIRM Kelly’s sentence.




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