United States v. Anthony Swaby

Case: 16-17780 Date Filed: 08/29/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17780
Non-Argument Calendar
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D.C. Docket No. 0:16-cr-60117-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY SWABY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 29, 2017)
Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Case: 16-17780 Date Filed: 08/29/2017 Page: 2 of 3
Anthony Swaby appeals his 120-month, below-the-guideline-range sentence,
after pleading guilty to two counts of bank robbery, in violation of 18 U.S.C. §
2113(a). On appeal, Swaby argues that he was incorrectly classified and sentenced
as a career offender. Swaby argues that his previous conviction under Fla. Stat.
§ 893.13(1), does not qualify as a controlled substance offense under U.S.S.G.
§ 4B1.2(b) because the statute does not contain a mens rea element. Although he
acknowledges that in United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014),
we held that § 893.13 qualifies as a controlled substance offense, he argues that
Smith conflicts with several Supreme Court decisions.
We review constitutional sentencing challenges de novo, which includes the
question of whether a defendant’s prior convictions qualify as controlled substance
offenses for purposes of U.S.S.G. § 4B1.2(b). See Smith, 775 F.3d at 1265. And
“[w]e are bound by [our] prior panel decisions unless and 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). In other words, “[w]e are
authorized to depart from a prior panel decision based upon an intervening
Supreme Court decision only if that decision actually overruled or conflicted with
it.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (internal
quotation marks omitted).
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Case: 16-17780 Date Filed: 08/29/2017 Page: 3 of 3
Swaby relies on Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581
(2008), Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), and
McFadden v. United States, 576 U.S. ___, 135 S. Ct. 2298 (2015) for the
proposition that Smith has been overruled. However we are not convinced that
those cases overrule or conflict with Smith. Therefore, because no Supreme Court
or en banc decision has overruled the holding from Smith, the prior panel precedent
rule bounds us to that holding. See Marte, 356 F.3d at 1344. We affirm Swaby’s
sentence.
AFFIRMED.
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