United States v. Gregory Allen Blue

Case: 14-12664 Date Filed: 06/30/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12664
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20014-WJZ-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY ALLEN BLUE,
a.k.a. Blue,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 30, 2015)
Before HULL, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Gregory Allen Blue appeals his sentence of 102 months’ imprisonment,
imposed below the advisory guidelines range, after pleading guilty to one count of
possessing with intent to distribute heroin and crack cocaine, in violation of 21
U.S.C. § 841(a)(1). On appeal, Blue argues that he was improperly sentenced as a
career offender under U.S.S.G. § 4B1.1(a) because his two prior convictions under
section 893.13(1) of the Florida Statutes were not “controlled substance offenses”
within the meaning of the career offender provision. Blue argues that a prior
conviction can only be a “controlled substance offense” if it is “substantially
similar” to the federal drug trafficking definition. Unlike federal law, his
convictions under section 893.13(1) did not have a mens rea element, so they could
not be “controlled substance offenses.”
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). 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. United States v. Archer, 531 F.3d
1347, 1352 (11th Cir. 2008).
A defendant is a career offender if, among other things, he has at least two
prior felony convictions for a controlled substance offense. U.S.S.G. § 4B1.1(a).
A “controlled substance offense”
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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 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).
Florida law punishes the sale, manufacture, delivery, or possession with
intent to sell, manufacture, or deliver, of cocaine as a second-degree felony. See
Fla. Stat. § 893.13(1)(a)(1). Doing the same within 1000 feet of a school is a first-
degree felony, and doing the same with marijuana within 1000 feet of a school is a
second-degree felony. See id. § 893.13(1)(c)(1)–(2). First-degree felonies are
punishable by up to 30 years’ imprisonment, id. § 775.082(3)(b)(1); second-degree
felonies are punishable by up to 15 years’ imprisonment, id. § 775.082(3)(d).
We have previously determined that a conviction under section 893.13(1) is
a “controlled substance offense” under § 4B1.2(b) in United States v. Smith, 775
F.3d 1262, 1267–68 (2014).
As Blue recognizes, his arguments are foreclosed by Smith. Here, Blue was
properly sentenced as a career offender because his prior marijuana and cocaine
convictions were offenses under state law, punishable by a term of imprisonment
exceeding one year, and concerned the distribution or dispensing, or possession
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with intent to distribute or dispense, of a controlled substance. See Smith, 775 F.3d
at 1267–68; see also U.S.S.G. § 4B1.2(b). We affirm.
AFFIRMED.
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