Case: 14-12578   Date Filed: 07/13/2015   Page: 1 of 6


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12578
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:13-cr-00286-JA-KRS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


MIKEL GERELL WALKER,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 13, 2015)

Before JORDAN, JILL PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Mikel Walker appeals his 114-month sentence for possession with intent to

distribute cocaine. He contends that the district court plainly erred in sentencing

him under the career-offender guideline, U.S.S.G. § 4B1.1, based on his prior state

convictions for selling and delivering cocaine. Specifically, he asserts that the

statute underlying his prior convictions—Fla. Stat. § 893.13(1)—is a strict liability

statute that does not require an offender to have knowledge of the illicit nature of

the substance involved. Walkers contends that any “controlled substance offense”

serving as a predicate conviction for § 4B1.2(b) requires a mens rea element.

After a thorough review, we affirm.

                                                I.

       In November 2013, a grand jury indicted Walker on one count of knowingly

possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C). Walker later pleaded guilty to that charge.

       In preparing the presentence investigation report (PSI), the probation officer

determined that Walker was subject to the career-offender enhancement based on

his prior state convictions for the sale and delivery of cocaine.1 Based on a total

offense level of 29 and a criminal history category of VI, the PSI set Walker’s

guideline range at 151 to 188 months’ imprisonment. Neither Walker nor the

government had any unresolved objections to the final version of the PSI. In a

1
 Walker’s criminal history includes Florida convictions for the: (1) delivery of cocaine within
1,000 feet of a convenience business; (2) sale/delivery of cocaine; and (3) delivery of cocaine.
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separate sentencing memorandum, Walker requested a downward departure,

pursuant to U.S.S.G. § 4A1.3(b)(3)(A), arguing that his criminal history category

overrepresented the seriousness of his criminal history.

       At sentencing, both Walker and the government reiterated that they did not

have any objections to the final PSI. As such, the district court adopted the PSI’s

factual findings and advisory guideline range of 151 to 188 months’ imprisonment.

Although the court rejected Walker’s request for a downward departure, the court

opted to vary downward and imposed a final sentence of 114 months’

imprisonment. This is Walker’s appeal.

                                                 II.

       Generally, we review the district court’s determination that a defendant

qualifies as a career offender under U.S.S.G. § 4B1.1 de novo. United States v.

Gibson, 

, 1243 (11th Cir. 2006). Because Walker failed to object to

the court’s application of the career-offender enhancement, however, we review

only for plain error.2 See United States v. Castro, 

, 1251 (11th Cir.

2006); see also Fed.R.Crim.P. 52(b).


2
  The government argues that the doctrine of invited error precludes us from reviewing Walker’s
challenge at all. See United States v. Ross, 

, 988 (11th Cir. 1997) (“It is a cardinal
rule of appellate review that a party may not challenge as error a ruling or other trial proceeding
invited by that party.”) (quotation marks omitted). We disagree. At sentencing, defense counsel
stated that Walker’s “acts in the past . . . technically qualify him[] as a career offender.” But this
statement came after the district court already had adopted the PSI’s guidelines calculations,
including the § 4B1.1 enhancement. Although Walker failed to object to his classification as a
career offender, he did not ask for it.
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       Pursuant to U.S.S.G. § 4B1.1, a convicted defendant qualifies as a career

offender if: (1) he was at least 18 years old when he committed the instant offense;

(2) the instant offense is a felony that is either a crime of violence or a controlled

substance offense; and (3) he has at least two prior felony convictions that

constitute either a crime of violence or a controlled substance offense. U.S.S.G.

§ 4B1.1(a). For purposes of § 4B1.1(a), a “controlled substance offense” is “an

offense under federal or state law, punishable by imprisonment for a term

exceeding one year, that prohibits” among other things, the “distribution . . . of a

controlled substance . . . or the possession of a controlled substance . . . with intent

to . . . distribute . . . .” U.S.S.G. § 4B1.2(b) (2013).

       Under Florida law, “a person may not sell, manufacture, or deliver, or

possess with intent to sell, manufacture, or deliver, a controlled substance.” Fla.

Stat. § 893.13(1)(a). This court recently held that a conviction under § 893.13(1)

qualifies as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). United

States v. Smith, 

, 1268 (11th Cir. 2014). In Smith, we determined

that the definitions for both “controlled substance offense” under § 4B1.2(b), and

“serious drug offense” under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(2)(A), include crimes that do not require an element of mens rea

regarding the illicit nature of the controlled substance. 

explained that “[n]o element of mens rea with respect to the illicit nature of the


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controlled substance is expressed or implied” by the definition of “controlled

substance offense” in § 4B1.2. 

Additionally, because the definition of

“controlled substance offense” in § 4B1.2 is unambiguous, neither the presumption

in favor of mental culpability nor the rule of lenity apply. 

of our recent decision in Smith, we conclude that the district court

did not err, plainly or otherwise, in sentencing Walker as a career offender.

Walker’s prior convictions under Fla. Stat. § 893.13(1) qualified as “controlled

substance offenses” for purposes of the career offender enhancement under

§ 4B1.1. See 

, 1267; see also United States v. Vega-

Castillo, 

, 1236 (11th Cir. 2008) (holding that this court is bound to

follow prior precedent unless and until it is overruled by the Supreme Court or by

this Court sitting en banc).

         Additionally, Walker’s reliance on our holding in Young v. United States,

, 536-37 (11th Cir. 1991)—to argue that state crimes are “controlled

substance offenses,” as defined in § 4B1.2(2), only if they are “substantially

similar” to federally drug trafficking crimes—is unavailing. As we explained in

Smith:

         When we decided Young, “controlled substance offense” was defined
         as an enumerated list of federal drug trafficking crimes and “similar
         offenses.” U.S.S.G. § 4B1.2(2) (Nov. 1988). But the definition of
         “controlled substance offense,” in this appeal, does not reference drug
         trafficking or a class of “similar offenses.” U.S.S.G. § 4B1.2(b) (Nov.
         2013).
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. As such, Young interpreted a different version of the

guidelines than in effect during Walker’s sentencing, and his reliance on this case

to establish a mens rea element is misplaced.

      Accordingly, the district court properly characterized Walker as a career

offender under § 4B1.1, and we affirm his 114-month sentence.

      AFFIRMED.




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