United States v. Dax Russell , 657 F. App'x 894 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13604
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20409-BB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAX RUSSELL,
a.k.a. Dewey,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 2, 2016)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Dax Russell appeals his 102-month sentence, imposed after he pled guilty to
conspiring to possess cocaine and heroin with the intent to distribute, in violation
of 21 U.S.C. § 846. On appeal, Mr. Russell argues that his two prior convictions
under Fla. Stat. § 893.13 could not be considered predicate offenses to make him a
career offender under the Sentencing Guidelines because the definition of
“controlled substance offense” under U.S.S.G. § 4B1.2 requires that the defendant
know that the substance in question is a controlled substance. Mr. Russell
contends that all the enumerated offenses in the statutory source of the career
offender status, 28 U.S.C. § 994(h), have such a scienter element, and because his
Florida convictions lack this element, they are not predicates under § 4B1.2.
We review de novo the district court’s decision to classify Mr. Russell as a
career offender. See United States v. Whitson, 597 F.3d 1218, 1220 (11th Cir.
2010). After review of the parties’ briefs and the record, we affirm.
Under the Sentencing Guidelines, a “controlled substance offense” is
defined as “an offense under federal or state law . . . 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). In United States v. Smith, 775 F.3d
1262 (11th Cir. 2014), we addressed the argument pressed by Mr. Russell. We
held that offenses under Fla. Stat. § 893.13 are properly considered controlled
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substance offenses under § 4B1.2(b) because, although the Florida statute does not
have a knowledge or mens rea requirement as to the nature of the controlled
substance, the definition of a controlled substance offense used in the career
offender guideline does not mention any such mens rea or knowledge requirement.
See id. at 1267–68. We refused to read such a requirement into that definition
because the Sentencing Guidelines’ definition of controlled substance offense was
unambiguous. See id. at 1267.
In United States v. LaBonte, 520 U.S. 751 (1997), the Supreme Court
addressed the meaning of the phrase “maximum term authorized” under an
amendment to the definition of a career offender under the Sentencing Guidelines.
The Court held that this phrase meant the maximum prison term available for the
offense of conviction, including any statutory sentencing enhancements, because
the plain language of § 994(h) controlled over any inconsistent interpretation by
the Sentencing Commission. See id. at 756–57. The Court did not, however,
consider the scope of previous convictions that could qualify a person for career
offender status.
We have previously held that the authority of the Sentencing Commission to
decide which offenses count as controlled substance offenses is not limited to the
mandate in § 994(h). See United States v. Weir, 51 F.3d 1031, 1032 (11th Cir.
1995). As a result, § 994(h) does not demand that we read into the guideline
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definition of controlled substance offense the knowledge element that is contained
in analogous federal drug offenses. The Sentencing Commission has the authority
to include offenses that are not listed in § 994(h) under its definition of a controlled
substance offense, and Mr. Russell has not cited to any authority requiring that the
definition must only cover offenses with a knowledge element.
We conclude that LaBlonte is not in conflict with and does not abrogate
Smith under the circumstances presented here. See United States v. Archer, 531
F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding 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.”); Garrett v.
University of Alabama at Birmingham Bd. of Trustees, 344 F.3d 1288, 1292 (11th
Cir. 2003) (“While an intervening decision of the Supreme Court can overrule the
decision of a prior panel of our court, the Supreme Court decision must be clearly
on point.”). Under our binding precedent, Mr. Russell’s prior convictions under
Fla. Stat. § 893.13 were properly considered controlled substance offenses for the
purposes of the career offender guideline. See Smith, 775 F.3d at 1267-68.
AFFIRMED.
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