Case: 14-13441   Date Filed: 02/26/2015   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13441
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:14-cr-00019-RH-CAS-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                  versus

DANNY CHANDLER, JR.,
a.k.a. “D”,

                                                        Defendant-Appellant.

                      ________________________

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

                            (February 26, 2015)

Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Danny Chandler, Jr., appeals his total 180-month sentence of imprisonment,

imposed after he pled guilty to possession with intent to distribute cocaine and

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

possession of a firearm in furtherance of a drug-trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A)(i) (Count 2); and being a felon in possession of firearms,

in violation of 18 U.S.C. § 922(g)(1) (Count 4). On appeal, Chandler argues that

the district court unlawfully enhanced his sentence by ruling that his prior

conviction for possession of cocaine with the intent to distribute under Fla. Stat. §

893.13(1), which did not require proof that he knew of the illicit nature of the

substance, was a “controlled substance offense” within the meaning of United

States Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.2.

      Because this Court recently held in United States v. Smith, __ F. 3d __,

No. 13-15227, 

, at *5 (11th Cir. Dec. 22, 2014), that “Section

893.13(1) of the Florida Statutes is . . . a ‘controlled substance offense,’ U.S.S.G. §

4B1.2(b),” we affirm.

                                          I.

      After Chandler entered his guilty plea, the probation office prepared his

presentence investigation report (“PSR”).      The probation officer calculated an

initial base offense level of 22 under U.S.S.G. § 2K2.1(a)(3), because the offense

involved a “firearm that is described in 26 U.S.C. § 5845(a)”—in this case, a


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sawed-off shotgun with a barrel less than 18 inches in length—and he had a prior

felony conviction for a “controlled substance offense,” as defined by U.S.S.G.

§ 4B1.2(b). Specifically, Chandler had a prior Florida conviction for possession of

cocaine with the intent to distribute, Fla. Stat. § 893.13(1)(a)(1). Two levels each

were added under § 2K2.1(b)(1)(A), because the offense involved three firearms,

and under § 2K2.1(b)(4)(B), because one of the firearms had been reported stolen.

Finally, as a result of Chandler’s acceptance of responsibility and cooperation with

authorities, the probation officer reduced the offense level by three. Chandler’s

total adjusted offense level was 23.

      Chandler qualified for a criminal history category of IV. His resulting

advisory guideline range for Counts 1 and 4 was 70 to 87 months’ imprisonment.

Count 2 carried a 120-month guideline range, required to be served consecutively

to the sentences for Counts 1 and 4.

      At sentencing, Chandler made no objection to the calculation of the

sentencing guideline range. After hearing evidence and considering the arguments

of the parties, the district court imposed concurrent 60-month sentences of

imprisonment on Counts 1 and 4, below the advisory guideline range, and a

consecutive 120-month sentence on Count 2, for a total term of 180 months.




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                                               II.

       Generally, we review de novo whether a prior conviction is a “controlled

substance offense” under § 4B1.2(b). United States v. Frazier, 

, 1505

(11th Cir. 1996). However, where, as here, the issue presented on appeal was not

raised before the district court, we review for plain error only. United States v.

Johnson, 

, 1195 (11th Cir. 2012).

                                              III.

       Chandler argues that his prior conviction for possession with intent to

distribute cocaine was not a “controlled substance offense” because Fla. Stat.

§ 893.13(1) does not require proof of the defendant’s knowledge of the illicit

nature of the substance. In 2002, the Florida legislature amended § 893.13 by

eliminating knowledge of the illicit nature of a substance as an element of

controlled-substance offenses. Fla. Stat. § 893.101(1)–(2). Chandler contends

that, when applying the categorical approach 1, his § 893.13(1)(a) conviction does

not fit within the generic federal definition of a “controlled substance offense”

because, unlike analogous federal law, 21 U.S.C. § 841(a)(1), the State is not

required to establish the defendant’s mens rea of the illicit nature of the substance.


       1
           See generally Descamps v. United States, ___ U.S. ___, 

, 2283-84
(2013); Donawa v. U.S. Att’y Gen., 

, 1279-82 (11th Cir. 2013) (using the
categorical approach and holding that a conviction under Fla. Stat. § 893.13(1)(a)(2), as amended
by Fla. Stat. § 893.101, was not a “drug trafficking crime,” as defined 18 U.S.C. § 924(c)(2), and
therefore was not a “drug trafficking aggravated felony” for purposes of 8 U.S.C. §§ 1227(a) and
1101(a)(43)(B)).
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       The sentencing provision that Chandler challenges, U.S.S.G. § 2K2.1(a)(3),

provides, in relevant part, for a base offense level of 22 if the defendant committed

the instant offense after sustaining a felony conviction for a “controlled substance

offense.”   U.S.S.G. § 2K2.1(a)(3)(B).        If Chandler’s prior conviction did not

qualify as a “controlled substance offense,” his offense level would have been 20,

resulting in a guideline range of 57 to 71 months of imprisonment. The Guidelines

define “controlled substance offense,” in turn, 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 the possession of a controlled substance . . . with intent to manufacture, import,

export, distribute, or dispense.” U.S.S.G. § 4B1.2(b); see U.S.S.G. § 2K2.1, cmt.

n.1.

       Chandler’s argument that his Fla. Stat. § 893.13(1)(a) conviction for

possessing cocaine with the intent to distribute is not a “controlled substance

offense” under the U.S.S.G. § 4B1.2(b), because it has no mens rea requirement, is

squarely foreclosed by this Court’s recent holding in Smith. See Smith, 

, at *5. According to our decision in Smith, U.S.S.G. § 4B1.2(b) includes

“crimes that do not require an element of mens rea regarding the illicit nature of

the controlled substance.” Smith, 

, at *1. “We are bound by

prior panel decisions unless or until we overrule them while sitting en banc, or they


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are overruled by the Supreme Court.” United States v. Jordan, 

,

1189 (11th Cir. 2011). Therefore, the district court did not plainly err, and we

affirm Chandler’s 180-month sentence of imprisonment.

      AFFIRMED.




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