USCA11 Case: 21-12119 Date Filed: 07/06/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12119
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIAMANTE STOVEALL,
a.k.a. Diamante K. Stoveall,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60024-WPD-1
____________________
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2 Opinion of the Court 21-12119
Before JILL PRYOR, BRANCH, and BLACK, Circuit Judges.
PER CURIAM:
Diamante Stoveall appeals his sentence imposed after plead-
ing guilty to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Stoveall asserts his prior felony conviction
under Florida Statutes § 893.13 for possession with intent to distrib-
ute marijuana is not a controlled substance offense under
§ 4B1.2(b) of the Sentencing Guidelines because the statute lacked
an element of mens rea to secure a conviction, and therefore his
base offense level should have been 20 instead of 22. After review, 1
we affirm.
The Guidelines define a “controlled substance offense” as an
offense under federal or state law, punishable by more than one
year of imprisonment, that prohibits the manufacture, import, ex-
port, distribution, or dispensing of a controlled substance, or pos-
session of a controlled substance, with intent to manufacture, im-
port, export, distribute, or dispense. U.S.S.G. § 4B1.2(b). Pursuant
to the Guidelines, a conviction for illegally possessing a firearm car-
ries a base offense level of 22 if, as relevant, the defendant had pre-
viously been convicted of a crime of violence or a controlled
1 We review de novo whether a prior conviction is a controlled substance of-
fense under U.S.S.G. § 4B1.2(b). United States v. Lange,
862 F.3d 1290, 1293
(11th Cir. 2017).
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21-12119 Opinion of the Court 3
substance offense.
Id. § 2K2.1(a)(3). Absent the qualifying predi-
cate felony, the base offense level is 20. Id. § 2K2.1(a)(4)(B).
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). In Travis Smith,
we held the definition of “controlled substance offense” under
U.S.S.G. § 4B1.2(b) did not require “that a predicate state offense
includes an element of mens rea with respect to the illicit nature of
the controlled substance.” United States v. Travis Smith,
775 F.3d
1262, 1267-68 (11th Cir. 2014). Thus, we held convictions under
Fla. Stat. § 893.13 qualified as a “controlled substance offense” un-
der § 4B1.2(b). Id. at 1268. While Stoveall acknowledges our deci-
sion in Travis Smith, he contends the decision has been limited by
the Supreme Court’s decision in Shular v. United States,
140 S. Ct.
779 (2020).
In Shular, the Supreme Court affirmed this Court’s holding
that a conviction for selling cocaine under
Fla. Stat. § 893.13 was a
“serious drug offense” as defined under
18 U.S.C. § 924(e)(2)(A).
140 S. Ct. at 784. The Supreme Court concluded the “serious drug
offense” definition “requires only that the state offense involve the
conduct specified” under
18 U.S.C. § 924(e)(2)(A)(ii)—specifically,
“manufacturing, distribution, or possessing with intent to distrib-
ute, a controlled substance”—but it did not require a “comparison
to a generic offense.”
Id. at 782.
Post-Shular, this Court has held the Supreme Court’s deci-
sion in Shular did not overrule Travis Smith. See United States v.
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4 Opinion of the Court 21-12119
Xavier Smith,
983 F.3d 1213, 1223 (11th Cir. 2020). In holding “that
a court determining whether an offense qualifies as a serious drug
offense need only consider whether the offense’s elements ‘neces-
sarily entail’ the types of conduct in the ACCA’s definition,” the
Shular court affirmed the decision in “Shular’s case which relied on
[Travis] Smith, that a prior conviction under
Fla. Stat. § 893.13
qualifies as serious drug offense under the ACCA.”
Id. The Su-
preme Court also noted “the petitioner in Shular had overstated
Florida’s disregard for mens rea, because a defendant charged un-
der
Fla. Stat. § 893.13(1)(a) who was unaware of the substance’s
illicit nature can raise that unawareness as an affirmative defense,
in which case the standard jury instructions require a finding of
knowledge beyond a reasonable doubt.”
Id. (quotation marks and
alteration omitted).
Stoveall’s argument that a mens rea is required for a crime
to constitute a “controlled substance offense” under § 4B1.2(b) of
the Sentencing Guidelines is foreclosed by our precedent in Travis
Smith. See United States v. Cruickshank,
837 F.3d 1182, 1187 (11th
Cir. 2016) (explaining under the prior panel precedent rule, we are
bound by our binding precedent “unless and until it is overruled by
us sitting en banc or by the Supreme Court”). Thus, the district
court did not err in applying a base offense level of 22 under
§ 2K2.1(a)(3) because it correctly followed our holding in Travis
Smith that a conviction under § 893.13 is a controlled substance
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21-12119 Opinion of the Court 5
offense even though it does not include an element of mens rea.2
Accordingly, we affirm Stoveall’s sentence.
AFFIRMED.
2 This Court’s recent decision in United States v. Jackson, __ F.3d. __,
2022
WL 2080280 (11th Cir. June 10, 2022) does not affect the disposition of this
appeal because Stoveall’s conviction under
Fla. Stat. § 893.13 was for posses-
sion with intent to distribute marijuana. The reasoning in Jackson was limited
to Schedule II controlled substances, while marijuana is a Schedule I controlled
substance.
Id. at *5-*7.
