Case: 18-10261 Date Filed: 12/31/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10261
Non-Argument Calendar
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D.C. Docket No. 5:17-cr-00030-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SCOTTY HAGANS,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(December 31, 2018)
Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Scotty Hagans appeals his 160-month total sentence for possession with
intent to distribute cocaine and cocaine base in violation of
21 U.S.C. § 841(a)(1),
(b)(1)(C). After review, 1 we affirm Hagans’ sentence.
I.
First, Hagans contends Application Note 1 to U.S.S.G. § 4B1.2(b), used by
the district court to further define a controlled substance offense as including
aiding and abetting, is inconsistent with the Guidelines and should be considered
non-binding commentary because inchoate crimes in general should not qualify as
controlled substance offenses.
We held in United States v. Smith that Guidelines commentary is
“authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.” United States
v. Smith,
54 F.3d 691, 693 (11th Cir. 1995). We concluded Application Note 1 of
§ 4B1.2, which included inchoate offenses as controlled substance offenses, “does
not run afoul of the Constitution . . . nor is it inconsistent with, or a plainly
erroneous reading of, sections 4B1.1 or 4B1.2.” Id. Thus, we held that
1
We review de novo a question of law arising under the Sentencing Guidelines. United
States v. Smith,
54 F.3d 690, 691 (11th Cir. 1995). We review de novo whether a prior
conviction qualifies as a controlled substance offense under U.S.S.G. § 4B1.2(b). United States
v. Lange,
862 F.3d 1290, 1293 (11th Cir.), cert. denied,
138 S. Ct. 488 (2017).
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Application Note 1 “constitutes a binding interpretation of the term controlled
substance offense.”
Id. (quotations omitted).
Neither this Court en banc nor the Supreme Court has overruled Smith, and
thus, under the prior precedent rule, Hagans’ argument the district court
inappropriately relied on Application Note 1 to § 4B1.2(b) is foreclosed by
precedent. See United States v. Vega-Castillo,
540 F.3d 1235, 1236 (11th Cir.
2008) (explaining under the prior precedent rule, we are bound by “a prior binding
precedent unless and until it is overruled by this Court en banc or by the Supreme
Court”).
II.
Second, Hagans asserts the district court rendered a procedurally
unreasonable sentence by treating his prior convictions as controlled substance
offenses because he could have been convicted of the offenses under Georgia’s
party to a crime statute, which he argues is overly broad.
The definition of a controlled substance offense under § 4B1.1 is found in
§ 4B1.2, which states:
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 the possession of a
controlled substance . . . with intent to manufacture, import, export,
distribute, or dispense.
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U.S.S.G. § 4B1.1, comment. (n.1); § 4B1.2(b). To determine what constitutes a
controlled substance offense, the predicate offense must “prohibit[] certain
activities related to controlled substances.” United States v. Lange,
862 F.3d 1290,
1295 (11th Cir. 2017). To decide whether the offense “prohibits” such activities,
we apply the categorical approach and compare “the definition in the Guidelines
with the statutory offense, not the conduct underlying the conviction.”
Id. at 1293
(quotations omitted). Specifically, when the Guidelines provide a definition for
predicate offenses, we compare “the elements of the crime of conviction to the
generic form of the offense as defined by the States.” United States v. Lockley,
632 F.3d 1238, 1242 (11th Cir. 2011) (emphasis added).
Hagans was convicted in 1993 for the sale of cocaine under O.C.G.A. § 16-
13-30 and in 2007 for trafficking in cocaine under O.C.G.A. § 16-13-31. Thus,
Hagans’ “crime[s] of conviction” were O.C.G.A. §§ 16-13-30 and 16-13-31. See
Lockley,
632 F.3d at 1242. We reject Hagans’ invitation to look beyond Hagans’
“crime[s] of conviction” and consider Georgia’s party to a crime statute. The party
to a crime statute was not one of Hagans’ “crime[s] of conviction.” Hagans makes
no argument on appeal that O.C.G.A. §§ 16-13-30 and 16-13-31 do not qualify as
controlled substance offenses apart from the party to a crime statute. Accordingly,
we affirm.
AFFIRMED.
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