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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13753
Non-Argument Calendar
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D.C. Docket No. 9:19-cr-80079-DMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY JEROME BILLINGS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 2, 2020)
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
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Anthony Billings Jr. appeals his 144-month sentence for one count of
possession with intent to distribute a controlled substance, in violation of
21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(iii), and his concurrent 120-month sentence on one count of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1).
Specifically, Billings appeals the district court’s determination that he was a career
offender under U.S.S.G. § 4B1.1 based on his prior convictions, and the
consequent sentence enhancement.
I.
On appeal, Billings argues that his prior conviction for sale of cocaine does
not constitute a “controlled substance offense” because the relevant Florida statute
lacks a mens rea requirement regarding the illicit nature of the controlled
substance. Billings concedes that Eleventh Circuit law is contrary to his own
position but argues that the law is wrongly decided.
We review de novo whether a prior conviction is a “controlled substance
offense” under U.S.S.G § 4B1.2(b). United States v. Lange,
862 F.3d 1290, 1293
(11th Cir. 2017).
A defendant is a career offender if: (1) the defendant is at least 18 years old
at the time of the instant offense of conviction; (2) the instant offense of conviction
is either a “crime of violence” or a “controlled substance offense;” and (3) the
defendant has at least two prior convictions of either a “crime of violence” or a
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“controlled substance offense.” U.S.S.G. § 4B1.1(a). A “controlled substance
offense” is an offense under federal or state law, punishable by more than one year
of imprisonment, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance, or 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, we held that a conviction under
Fla. Stat. § 893.13
constitutes a “controlled substance offense,” under U.S.S.G. § 4B1.2(b).
775 F.3d
1262, 1268 (11th Cir. 2014). Furthermore, the definition of “controlled substance
offense” under U.S.S.G. § 4B1.2(b) does not require “that a predicate state offense
includes an element of mens rea with respect to the illicit nature of the controlled
substance.” Id.; see also United States v. Pridgeon,
853 F.3d 1192, 1200 (11th Cir.
2017) (rejecting the argument that Smith was wrongly decided and affirming
Smith’s holding that convictions under
Fla. Stat. § 893.13 qualify as “controlled
substance offenses” under the Sentencing Guidelines).
We are bound by prior panel decisions unless or until we overrule them
while sitting en banc or they are overruled by the Supreme Court. United States v.
Jordan,
635 F.3d 1181, 1189 (11th Cir. 2011); see also United States v. Bishop,
940 F.3d 1242, 1253-54 (11th Cir. 2019) cert. denied,
140 S. Ct. 1274 (2020)
(holding that we are bound by Smith until it is properly overruled).
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Here, Billings’s argument that his prior conviction for sale of cocaine under
Fla. Stat. § 893.13 was not a “controlled substance offense” under U.S.S.G.
§ 4B1.2(b) because the state law lacked a mens rea element is foreclosed by our
decision in Smith. See Pridgeon, 853 F.3d at 1200. We are bound by our holding
in Smith under the prior precedent rule. See Bishop, 940 F.3d at 1253-54. Thus,
the district court did not err in determining that Billings’s prior conviction under
Fla. Stat. § 893.13 was a “controlled substance offense.” Accordingly, we affirm
the district court’s determination.
II.
Billings argues that the district court improperly determined he was a career
offender based in part on its finding that his prior conviction for aggravated assault
under
Fla. Stat. § 784.021 was a “crime of violence” because that statute did not
require an intentional mens rea and allowed conviction under a reckless disregard
standard. Billings again concedes that his argument is foreclosed by Eleventh
Circuit precedent, but he contends that United States v. Golden,
854 F.3d 1256
(11th Cir. 2017), and Turner v. Warden Coleman FCI,
709 F.3d 1328 (11th Cir.
2013), were wrongly decided because those decisions failed to use the
determination and construction of the elements of the state offense by Florida
courts when they applied a categorical approach.
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We review de novo whether a defendant’s prior conviction qualifies as a
“crime of violence” under U.S.S.G § 4B1.2(a). See United States v. Rosales-
Bruno,
676 F.3d 1017, 1020 (11th Cir. 2012). However, when a defendant fails to
object to an error before the district court, we review the argument for plain error.
United States v. Hall,
314 F.3d 565, 566 (11th Cir. 2002). To establish plain error,
the defendant must show an error: (1) that is not intentionally relinquished or
abandoned, (2) that is plain, and (3) that affected substantial rights. United States
v. Corbett,
921 F.3d 1032, 1037 (11th Cir. 2019) (citing Molina-Martinez v. United
States,
136 S. Ct. 1338, 1343 (2016)). When these conditions are met, we may
only exercise our discretion to notice the error “if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id. (citing Molina-
Martinez,
136 S. Ct. at 1343).
We will not conduct plain error review when a party invites error by the
district court. See United States v. Love,
449 F.3d 1154, 1157 (11th Cir. 2006)
(citing United States v. Ross,
131 F.3d 970, 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.”). “The doctrine of invited error is
implicated when a party induces or invites the district court into making an error.”
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United States v. Stone,
139 F.3d 822, 838 (11th Cir. 1998). “Where invited error
exists, it precludes a court from invoking the plain error rule and reversing.”
United States v. Silvestri,
409 F.3d 1311, 1327 (11th Cir. 2005).
The Sentencing Guidelines define a “crime of violence” as:
any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion, or the use or
unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or
explosive material as defined in
18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a).
Under
Fla. Stat. § 784.021, “[a]n ‘aggravated assault’ is an assault: (a) With
a deadly weapon without intent to kill; or (b) With an intent to commit a felony.”
Fla. Stat. § 784.021. An assault is defined as “an intentional, unlawful threat by
word or act to do violence to the person of another, coupled with an apparent
ability to do so, and doing some act which creates a well-founded fear in such
other person that such violence is imminent.”
Fla. Stat. § 784.011.
In Turner, we held that
Fla. Stat. § 784.021 qualifies as a “violent felony”
under the ACCA’s elements clause. Turner, 709 F.3d at 1337-38 (concluding that
Florida aggravated assault “will always include as an element the . . . threatened
use of physical force against the person of another . . .”). Furthermore, an assault
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carried out with a deadly weapon, such as a firearm, is “included in ‘the generic
crime of “aggravated assault” so as to qualify as a “crime of violence”’ or a violent
felony for purposes of sentencing.” Id. at 1338 n.6 (quoting United States v.
Palomino Garcia,
606 F.3d 1317, 1331-32 (11th Cir. 2010)). Even though Turner
addressed the elements clause of the ACCA,
18 U.S.C. § 924(e)(2)(B)(i), that
clause is identical to the elements clause of U.S.S.G. § 4B1.2(a)(1); thus, Turner is
binding as to
Fla. Stat. § 784.021 constituting a “crime of violence” under U.S.S.G.
§ 4B1.2(a). United States v. Golden,
854 F.3d 1256, 1257 (11th Cir. 2017); see
also United States v. Deshazior,
882 F.3d 1352, 1355 (11th Cir. 2018), cert.
denied,
139 S. Ct. 1255 (2019) (stating that Turner forecloses any argument that
Fla. Stat. § 784.021 is not a violent felony). The prior panel precedent rule dictates
that, even if Turner is flawed, we, as a later panel, do not have the authority to
disregard it. See Golden, 854 F.3d at 1257.
We do not reach the merits of Billings’ argument because he invited or
induced the district court’s determination that he now claims was error. In his plea
agreement, Billings agreed that his prior conviction for aggravated assault with a
firearm constituted a predicate offense and helped qualify him as a career offender
under U.S.S.G. § 4B1.1. During the plea colloquy, Billings affirmed that his prior
conviction for aggravated assault helped qualify him as a career offender. Finally,
at his sentencing hearing, Billings explicitly stated he was not raising an objection
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concerning his prior aggravated assault conviction constituting a career offender
predicate. Thus, Billings is precluded from claiming on appeal that the district
court erred in determining that his prior conviction for aggravated assault qualified
as a “crime of violence.” See Silvestri,
409 F.3d at 1327. 1
AFFIRMED.
1
Although Billings clearly invited an error, his challenge would have been foreclosed in
this circuit in any event by our Turner decision.
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