United States v. Keyonbie Nashamba Humphrey ( 2015 )

Case: 15-12052 Date Filed: 12/03/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12052
Non-Argument Calendar
________________________
D.C. Docket No. 4:14-cr-10028-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEYONBIE NASHAMBA HUMPHREY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 3, 2015)
Before HULL, JORDAN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 15-12052 Date Filed: 12/03/2015 Page: 2 of 4
Keyonbie Nashamba Humphrey appeals his 120-month sentence, imposed
below his advisory guidelines range,1 after pleading guilty to a single count of
possessing with intent to distribute 28 grams or more of cocaine base and a
detectable amount of marijuana.
On appeal, Humphrey argues that the district court erred in determining that
his two prior drug convictions under Fla. Stat. § 893.13(1) qualified him as a career
offender under U.S.S.G. § 4B1.1(a).2 Although he concedes that this Court
previously determined, in United States v. Smith, 775 F.3d 1262 (11th Cir. 2014),
cert. denied, 135 S. Ct. 2827 (2015), that a violation of Fla. Stat. § 893.13(1)
qualifies as a “controlled substance offense” for purposes of the Sentencing
Guidelines’ career offender enhancement, Humphrey argues, for the purpose of
preserving his appellate rights, that Smith was incorrect. 3
We review de novo the district court’s decision to classify a defendant as a
career offender under U.S.S.G. § 4B1.1. United States v. Gibson, 434 F.3d 1234,
1243 (11th Cir. 2006). This Court is “bound to follow a prior binding precedent
1
Humphrey’s offense level was 31, and his criminal history category was VI, yielding an
advisory guidelines range of 188 to 235 months.
2
One felony drug conviction was in 2004, and the other in 2007. The government
contended that Humphrey also had a third prior qualifying conviction, namely, his 2003 drug
conviction, but that prior conviction is not at issue in this appeal.
3
Humphrey actually argues that neither of his prior convictions should qualify as a
“serious drug offense,” but he is quoting language from the Armed Career Criminal Act, 18
U.S.C. § 924(e), which is not relevant in this case. We presume Humphrey means to argue that
neither of his prior convictions should qualify as a “controlled substance offense” under U.S.S.G.
§ 4B1.1(a).
2
Case: 15-12052 Date Filed: 12/03/2015 Page: 3 of 4
unless and until it is overruled by this court en banc or by the Supreme Court.”
United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quotation
omitted).
A defendant is a career offender if, inter alia, he has at least two prior felony
convictions for a controlled substance offense. U.S.S.G. § 4B1.1(a). A “controlled
substance offense” is “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 a
counterfeit substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense.” Id.
§ 4B1.2(b).
Under Florida law, it is a crime to “sell, manufacture, or deliver, or possess
with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat.
§ 893.13(1)(a). Where the offense involves cocaine, it is a second-degree felony
and carries a 15-year maximum term of imprisonment. Id. § 893.13(1)(a)(1),
cross-referencing id. §§ 775.082(3)(d), 893.03(2)(a)(4). In 2002, the Florida
legislature eliminated knowledge of the illicit nature of a substance as an element
of controlled substance offenses under Fla. Stat. § 893.13(1). Id. § 893.101(2).
Subsequently, this Court has determined that a prior conviction under Fla. Stat.
§ 893.13(1) is a “controlled substance offense” under U.S.S.G. § 4B1.2(b) and,
3
Case: 15-12052 Date Filed: 12/03/2015 Page: 4 of 4
therefore, qualifies as a predicate felony for the purposes of the career offender
enhancement under U.S.S.G. § 4B1.1(a). Smith, 775 F.3d at 1267-68. “No
element of mens rea with respect to the illicit nature of the controlled substance is
expressed or implied” in the Guidelines’ definition of a controlled substance
offense. Id. at 1267.
The district court did not err in determining that Humphrey’s prior
convictions under Fla. Stat. § 893.13(1) were controlled substance offenses for
purposes of the career offender enhancement. See id. at 1267-68. As Humphrey
concedes, his argument on appeal is foreclosed by our decision in Smith.
AFFIRMED.
4