United States v. Jason Peraza

Case: 18-11104 Date Filed: 11/09/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11104
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cr-20419-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON PERAZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 9, 2018)
Before TJOFLAT, BRANCH and FAY, Circuit Judges.
PER CURIAM:
Case: 18-11104 Date Filed: 11/09/2018 Page: 2 of 7
Jason Peraza appeals his 120-month sentence, imposed after he was
convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1), possession with intent to distribute controlled substances in violation
of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug-
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). He argues that the
District Court erred in designating him as a career offender. First, he argues that
his two prior convictions for possession with intent to distribute marijuana under
Fla. Stat. § 893.13 do not qualify as controlled substance offenses because the
statute’s definition of marijuana is broader than the federal definition in the
Controlled Substances Act (“CSA”), and because Florida’s statute requires no
mens rea. Second, he argues that his prior robbery conviction under Fla. Stat.
§ 812.13 does not qualify as a crime of violence because it does not require violent
physical force. Because our precedent clearly establishes that prior convictions
under Fla. Stat. § 893.13 and § 812.13 both count towards career offender status
under the Sentencing Guidelines, we affirm.
We review de novo whether a defendant qualifies as a career offender.
United States v. Pridgeon, 853 F.3d 1192, 1198 n. 1 (11th Cir. 2017), cert. denied,
138 S. Ct. 215 (2017). Under the 2016 version of the Sentencing Guidelines that
was in effect at the time of Peraza’s sentencing, a defendant is a career offender if:
(1) he was at least 18 years old at the time of the instant offense; (2) the instant
2
Case: 18-11104 Date Filed: 11/09/2018 Page: 3 of 7
offense is a crime of violence or a controlled substance offense; and (3) he has at
least two prior crime of violence or controlled substance offense convictions. U.S.
Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2016).
Peraza does not dispute that he meets the first two criteria. For the third criterion,
the District Court found that Peraza had two prior convictions for controlled
substance offenses and one prior conviction for a crime of violence. We address
each finding in turn.
I. Controlled Substance Offenses
The Sentencing Guidelines define a controlled substance offense in
§ 4B1.2(b):
The term “controlled substance offense” 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 the possession of a
controlled substance . . . with intent to manufacture, import, export,
distribute, or dispense.
Peraza has two prior convictions for possession with intent to distribute marijuana
under Fla. Sta. § 893.13.1 We have held that a conviction under § 893.13 is a
controlled substance offense for the purposes of the Sentencing Guidelines.
1
In relevant part, § 893.13 states “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).
3
Case: 18-11104 Date Filed: 11/09/2018 Page: 4 of 7
Pridgeon, 853 F.3d at 1198; United States v. Smith, 775 F.3d 1262, 1268 (11th Cir.
2014).
Nevertheless, Peraza maintains that his convictions do not qualify as
controlled substance offenses for two reasons. First, he asserts that the term
controlled substance must be defined as set out in the CSA, and Florida defines
“marijuana” more broadly than the CSA does.2 Thus, under the categorical
approach, where courts look to whether any violation of the underlying statute
would qualify as a predicate offense, a marijuana conviction under Florida law
cannot be a controlled substance offense under § 4B1.2(b). Second, Peraza argues
that because § 893.13 does not have a mens rea element requiring knowledge that
the substance is illegal, it is a strict liability statute, and the Supreme Court
prohibited strict liability crimes from serving as predicate offenses in Begay v.
United States, 553 U.S. 137 (2008).
Our precedent forecloses both arguments. We have twice held that § 893.13
is a controlled substance offense under § 4B1.2(b). Pridgeon, 853 F.3d at 1198;
Smith, 775 F.3d at 1268. Under the prior panel precedent rule, we are bound by
our prior decisions “unless and until [they are] overruled or undermined to the
2
Specifically, Peraza claims that Florida defines marijuana to include all parts of the
marijuana plant, while the CSA excludes the “mature stalks” and their byproducts from its
definition of marijuana. Compare Fla Stat. § 893.02(3), with 21 U.S.C. § 802(16). In other
words, Florida criminalizes the possession of hemp, but it is not against federal law to possess
imported hemp.
4
Case: 18-11104 Date Filed: 11/09/2018 Page: 5 of 7
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). And there is no
overlooked argument exception to the rule. In re Lambrix, 776 F.3d 789, 794
(11th Cir. 2015); see also Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d
1227, 1234 (11th Cir. 2006) (“A prior panel precedent cannot be circumvented or
ignored on the basis of arguments not made to or considered by the prior panel.”).
Peraza points to no case abrogating or overruling our prior decisions. At most, he
identifies arguments he thinks we overlooked. Thus, we are bound by our
decisions in Pridgeon and Smith, and Peraza’s two convictions under § 893.13
count as controlled substance offenses and are sufficient to qualify him as a career
offender.
II. Crime of Violence
Under the Sentencing Guidelines, a crime of violence is “any offense under
federal or state law” 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 . . . or explosive material.
§ 4B1.2(a). The first clause is referred to as the “elements clause,” and the second
clause is referred to as the “enumerated offenses clause.” Peraza has a prior
conviction for robbery under Fla. Sta. § 812.13, which defines robbery as:
5
Case: 18-11104 Date Filed: 11/09/2018 Page: 6 of 7
the taking of money or other property which may be the subject of
larceny from the person or custody of another, with the intent to either
permanently or temporarily deprive the person or the owner of the
money or other property, when in the course of the taking there is the
use of force, violence, assault or putting in fear.
The Florida Standard Jury Instructions further explain that the taking referred to
“must be by the use of force or violence or by assault so as to overcome the
resistance of the victim, or by putting the victim in fear so that the victim does not
resist.”3 Fla. Std. Jury Instr. (Crim.) 15.1.
We have repeatedly held that § 812.13 qualifies as a crime of violence or its
equivalent. In United States v. Lockley, we determined that a conviction under §
812.13 qualifies as a crime of violence under both § 4B1.2(a)’s elements clause
and its enumerated offenses clause. 632 F.3d 1238, 1244–45 (11th Cir. 2011).
And, in United States v. Fritts, we extended Lockley and held that a conviction
under § 812.13 also qualifies as a violent felony under the Armed Career Criminal
Act’s elements clause. 4 841 F.3d 937, 942 (11th Cir. 2016). We specifically
rejected the argument that the commission of a robbery in Florida did not require
violent force. See id. at 942–43.
3
These instructions reflect the Florida Supreme Court’s decision in Robinson v. State, 692 So.2d
883 (Fla. 1997).
4
The ACCA contains the same elements clause for whether a prior conviction qualifies as a
violent felony as is found in the Sentencing Guidelines. See Fritts, 841 F.3d at 940 n.4. For this
reason, cases interpreting one are often used to interpret the other. Id.
6
Case: 18-11104 Date Filed: 11/09/2018 Page: 7 of 7
Peraza simply argues that our precedent was wrongly decided. Again, we
are bound to follow our precedent “unless and until it is overruled or undermined
to the point of abrogation by the Supreme Court or by this court sitting en banc.”5
Archer, 531 F.3d at 1352. Thus, his argument is foreclosed by our precedent, and
we find that § 812.13 qualifies as a crime of violence that counts towards Peraza’s
career offender status.
AFFIRMED.
5
The Supreme Court recently granted a petition for certiorari to answer whether a state robbery
offense, such as § 812.13, that has as an element “overcoming victim resistance” qualifies as a
violent felony under the ACCA. See Stokeling v. United States, 684 F. App’x. 870 (11th Cir.
2017), cert. granted, 138 S.Ct. 1438 (2018). But a grant of a petition for certiorari does not
overturn or abrogate our precedent. See Ritter v. Thigpen, 828 F.2d 662, 665–66 (11th Cir.
1987) (“A grant of certiorari does not constitute new law.”). Even if the Supreme Court decides
that § 812.13 does not satisfy the elements clause, we held in Lockley that it satisfies the
enumerated offenses clause as well. 632 F.3d at 1244–45. Furthermore, Peraza independently
qualifies as a career offender even without the prior robbery conviction because of his two prior
controlled substance offenses. See supra Part.I.
7