USCA11 Case: 19-12576 Date Filed: 12/17/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12576
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00428-VMC-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY BROWN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 17, 2020)
Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Gregory Brown appeals his 90-month sentence -- imposed upon
resentencing -- after Brown pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). No reversible error has been shown;
we affirm.
At Brown’s original sentencing, the sentencing court concluded Brown was
subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”).
This determination was based on Brown’s three Florida felony convictions for
delivery of cocaine within 1000 feet of a school, in violation of Fla. Stat. § 893.13.
On direct appeal, we affirmed Brown’s conviction, vacated his sentence, and
remanded for resentencing without the ACCA enhancement. See United States v.
Brown, 750 F. App’x 892, 896 (11th Cir. 2018) (unpublished) (concluding that the
government failed to prove that Brown’s three felony drug offenses were
committed on different occasions).
On remand, the probation officer prepared a revised Presentence
Investigation Report (“PSI”) for resentencing. In the light of Brown’s prior felony
convictions for violations of Fla. Stat. § 893.13, the PSI concluded that Brown had
at least two convictions for a “controlled substance offense.” The PSI thus
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assigned a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2). The PSI then
applied a 3-level reduction for acceptance of responsibility, resulting in a total
offense level of 21. Based on this total offense level and Brown’s criminal history
category of VI, Brown’s guidelines range was calculated as 77-96 months’
imprisonment. Brown made no objections to the revised PSI. The sentencing
court imposed a sentence of 90 months’ imprisonment.
On appeal, Brown now challenges the sentencing court’s calculation of his
guidelines range. Brown says the guidelines definition of “controlled substance
offense” should be read to include a mens rea requirement. Because Brown’s
convictions under Fla. Stat. § 893.13 include no mens rea requirement for the illicit
nature of the controlled substance, Brown says those offenses cannot qualify as
“controlled substance offenses” under the guidelines.
Because Brown raises this argument for the first time on appeal, we consider
it only for plain error. See United States v. Vandergrift,
754 F.3d 1303, 1307 (11th
Cir. 2014).
As Brown concedes, his sole argument on appeal is foreclosed by our
binding precedent. See United States v. Smith,
775 F.3d 1262, 1266-68 (11th Cir.
2014) (concluding that a conviction under Fla. Stat. § 893.13 constitutes a
“controlled substance offense” within the meaning of the guidelines: a predicate
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state offense need not include “an element of mens rea with respect to the illicit
nature of the controlled substance.”); see also United States v. Pridgeon,
853 F.3d
1192 (11th Cir. 2017) (upholding the decision in Smith). Under our prior panel
precedent rule, we are bound by our decision in Smith. 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.”).
Because Brown has demonstrated no error -- plain or otherwise -- we affirm.
AFFIRMED.
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