           Case: 15-12072   Date Filed: 04/13/2016   Page: 1 of 7


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12072
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:14-cr-00073-MW-CAS-1



UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                  versus

WALTER ERIC HOLMES,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 13, 2016)

Before JORDAN, JULIE CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
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      Walter Eric Holmes appeals his 180-month total sentence, imposed after

pleading guilty to three counts of distribution of crack cocaine and one count of

distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

Holmes was sentenced as a career offender based on two prior convictions under

Fla. Stat. § 893.13. On appeal, Holmes argues that the Sentencing Commission

exceeded its statutory authority in defining the term “controlled substance offense”

under U.S.S.G. § 4B1.2(b) to include Florida convictions that lack the mens rea

element of “knowledge of the illicit nature of the substance” described in the

enumerated federal offenses contained in 21 U.S.C. § 841, and thus the district

court erred in sentencing him as a career offender. Holmes further argues that this

Court’s decision of United States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014),

cert. denied, 135 S. Ct. 2827 (2015), holding that a conviction under Florida

Statute § 893.13(1)(a) constitutes a “controlled substance offense” under U.S.S.G.

§ 4B1.2(b), was wrongly decided.

                                           I.

      We review de novo issues of statutory interpretation. United States v.

Castro, 455 F.3d 1249, 1251 (11th Cir. 2006). However, where the defendant does

not raise the specific argument before the district court, we review only for plain

error. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). Reversible

error under the plain error standard requires that (1) an error occurred, (2) the error


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was plain, and (3) the error affected substantial rights. United States v. Zinn, 321

F.3d 1084, 1087 (11th Cir. 2003). A plain error exists where the legal error is clear

and obvious rather than subject to reasonable dispute. Puckett v. United States,

556 U.S. 129, 135, 129 S. Ct. 1423, 1429, 173 L. Ed. 2d 266 (2009). The error

affects substantial rights if the appellant demonstrates that it “affected the outcome

of the district court proceedings.” Id. Where it is clear that the district court would

have imposed the same sentence regardless of the error, such error did not affect

substantial rights. See United States v. Robles, 408 F.3d 1324, 1327 (11th Cir.

2005).

      The duties of the Sentencing Commission are set forth in 28 U.S.C. § 994.

28 U.S.C. § 994. Section 994(a) provides, among other things, that the

Commission shall promulgate and distribute guidelines for use in determining the

sentence to be imposed in a criminal case, and shall put forth “general policy

statements regarding application of the guidelines or any other aspect of sentencing

or sentence implementation that in the view of the Commission would further the

purposes set forth in section 3553(a)(2) of title 18, United States Code.” 28 U.S.C.

§ 994(a). Section 994(h), in turn, mandates the Commission to specify sentence

guidelines for career offenders, those who have felony convictions for crimes of

violence or for controlled substance offenses. See 28 U.S.C. § 994(h). Section

994(h) enumerates offenses that qualify as predicate controlled substance offenses,


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which it describes as “an offense described in section 401 of the Controlled

Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the

Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, 959), and

chapter 705 of title 46.” Id.

      The sentencing guidelines set forth the requirements to classify a defendant

as a career offender. U.S.S.G. § 4B1.1. Relevant here is the requirement that the

“defendant has at least two prior felony convictions of . . . a controlled substance

offense.” Id. Under the guidelines, the term “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.

U.S.S.G. § 4B1.2(b). As we explained in Smith, “[n]o element of mens rea with

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

[this] definition.” Smith, 775 F.3d at 1267. Thus, convictions under Fla. Stat.

§ 893.13(1) constitute controlled substance offenses. Id.

      We have observed that while the commentary to § 4B1.1 states that the

career offender provision implements the mandate of 28 U.S.C. § 994(h), section

994(h) is not the only mandate for that provision. United States v. Weir, 51 F.3d

1031, 1032 (11th Cir. 1995) (citing commentary to U.S.S.G. § 4B1.1). Rather, “§

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994(a), the Guidelines’ enabling statute, provides independent grounds for the

career offender provision.” Id. The “authority granted by § 994(a) is implicit in all

the provisions of the guidelines.” United States v. Smith, 54 F.3d 690, 693 (11th

Cir. 1995) (holding that classifying attempts to commit narcotics crimes as

“controlled substance offenses” was within the Commission’s authority pursuant to

§ 994(a)) (emphasis omitted); see also Weir, 51 F.3d at 1032 (holding that the

Commission did not overstep its statutory mandate in classifying drug conspiracies

as “controlled substance offenses” despite not being enumerated offenses under

§ 994(h)).

      In the instant case, Holmes argues on appeal that the district court erred in

applying the career offender sentencing enhancement because the Sentencing

Commission lacked statutory authority to classify offenses lacking the mens rea

element of “knowledge of the illicit nature of the substance,” including Holmes’s

prior convictions under Fla. Stat. § 893.13, as predicate “controlled substance

offenses” for the purposes of the career offender sentencing enhancement.

Holmes’s main contention is that the Sentencing Commission derives its authority

to determine which offenses qualify as “controlled substance offenses” from 28

U.S.C. § 944(h), which specifically describes offenses containing a traditional

mens rea element of guilty knowledge. However, Holmes concedes that he did not

raise his specific challenge to the Sentencing Commission’s statutory authority


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before the before the district court. Therefore, the standard of review on appeal is

plain error.

      In our view, the district court did not plainly err in applying the career

offender enhancement in calculating Holmes’s guideline range. We have twice

held that the authority of the Sentencing Commission to define predicate

“controlled substance offenses” does not emanate exclusively from 28 U.S.C. §

994(h). Rather, we have explained other parts of the enabling statute, including the

general mandate under 28 U.S.C. § 994(a) to promulgate guidelines for use of a

sentencing court in determining the sentence to be imposed in a criminal case,

grant the Sentencing Commission broader authority to define predicate offenses.

See United States v. Weir, 51 F.3d 1031, 1032 (11th Cir. 1995), cert denied, 516

U.S. 1120 (1996) (“[A]lthough the commentary to section 4B1.1 states that the

career offender provision is implementing the mandate of 28 U.S.C. § 994(h), it

does not suggest that section 994(h) is the only mandate for that provision.”);

United States v. Smith, 54 F.3d 690, 693 (11th Cir.), cert denied, 516 U.S. 926

(1995) (same). In light of these precedents, we cannot say that the district court

plainly erred when it found that Holmes’s two prior convictions under Fla. Stat. §

893.13 were predicate “controlled substance offenses” for the purposes of a career

offender sentencing enhancement. Because we find that there was no error, we

need not reach the question of whether any error was harmless.


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                                         II.

      We review de novo the district court’s interpretation and application of the

sentencing guidelines. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.

2006). The district court’s determination that a defendant qualifies as a career

offender is a question of law that is also reviewed de novo. Id.

      Under the prior panel precedent rule, subsequent panels are bound by the

holding of a prior panel “unless and until it is overruled or undermined to the point

of abrogation by the Supreme Court or by this court sitting en banc.” United

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

      The district court did not err in concluding that Holmes’s prior § 893.13(1)

convictions qualify him as a career offender. A prior panel has ruled that

convictions under Florida Statute § 893.13(1) qualify as “controlled substance

offenses” under the sentencing guidelines despite the fact that the Florida statute

lacks a mens rea element. See Smith, 775 F.3d at 1268. That decision has not

been overruled or undermined to the point of abrogation. Thus, Holmes’s

arguments are foreclosed by the holding of Smith. Accordingly, we affirm.

      AFFIRMED.




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