United States v. Morris Dewayne Carroll

U
        USCA11 Case: 19-12791     Date Filed: 07/07/2021   Page: 1 of 4



                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12791
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:19-cr-00046-CEM-TBS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MORRIS DEWAYNE CARROLL,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                                (July 7, 2021)

Before JILL PRYOR, NEWSOM, and LUCK, Circuit Judges.

PER CURIAM:
          USCA11 Case: 19-12791         Date Filed: 07/07/2021    Page: 2 of 4



      Morris Carroll appeals his 108-month sentence for possessing a firearm as a

convicted felon. He argues that the district court erred in relying on United States

v. Smith, 

775 F.3d 1262

 (11th Cir. 2014), to find that his prior felony drug

conviction under Fla. Stat. § 893.13 qualifies as a “controlled substance offense”

under U.S.S.G. § 4B1.2(b) because, he argues, § 893.13 required no mens rea with

respect to the illicit nature of the substance.

      We ordinarily review de novo whether a prior conviction qualifies as a

controlled substance offense under the Sentencing Guidelines. United States v.

Bates, 

960 F.3d 1278

, 1293 (11th Cir. 2020). But when an issue is raised for the

first time on appeal, we review for plain error. United States v. Lange, 

862 F.3d

1290

, 1293 (11th Cir. 2017).

      Section 2K2.1(a)(2) of the U.S. Sentencing Guidelines is used to calculate

the base offense level for a defendant convicted of the unlawful possession of a

firearm “if the defendant committed any part of the instant offense subsequent to

sustaining at least two felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). The commentary explains

that a “controlled substance offense” is defined as “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


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          USCA11 Case: 19-12791       Date Filed: 07/07/2021    Page: 3 of 4



manufacture, import, export, distribute, or dispense.” U.S.S.G. §§ 2K2.1,

comment. (n.1), 4B1.2(b).

      In Smith, we held that offenses under Fla. Stat. § 893.13(1) are categorically

controlled substance offenses under the Guidelines, concluding that no element of

mens rea with respect to the illicit nature of the controlled substance was required

by U.S.S.G. § 4B1.2(b)’s definition of a “controlled substance offense.” 775 F.3d

at 1267–68. In subsequent cases, we repeatedly upheld Smith in determining that a

prior conviction under Fla. Stat. § 893.13 is a controlled substance offense under

the Sentencing Guidelines. Id.; see United States v. Bishop, 

940 F.3d 1242

, 1253–

54 (11th Cir. 2019); United States v. Pridgeon, 

853 F.3d 1192

, 1198–1200 (11th

Cir. 2017).

      In Shular, the Supreme Court clarified that a court deciding whether a state

offense fits the Armed Career Criminal Act’s (ACCA) definition of a “serious drug

offense” should do so not by comparing the elements of the state offense to those

of a generic offense of the kind identified in § 924(e)(2)(A)(ii), but by asking

whether the elements of the state offense “necessarily entail” one of the types of

conduct identified in § 924(e)(2)(A)(ii). Shular v. United States, 

140 S. Ct. 779

,

784–85 (2020). The Shular Court affirmed an unpublished decision of this Court

that relied on Smith’s holding that offenses under Fla. Stat. § 893.13(1) constitute

serious drug offenses under the ACCA. Id. at 784. Nevertheless, the Supreme


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          USCA11 Case: 19-12791       Date Filed: 07/07/2021    Page: 4 of 4



Court expressly reserved the question whether, even under its analysis, the ACCA

requires that a serious drug offense include an element of knowledge of the illicit

status of the drug. Id. at 787 n.3. Shortly after the Court’s decision in Shular,

however, we clarified that Shular’s reasoning and holding are consistent with this

Court’s precedent and reaffirmed our decision in Smith, holding once again that

convictions under Fla. Stat. § 893.13 constitute serious drug offenses as defined in

the ACCA. United States v. Smith, 

983 F.3d 1213

, 1223 (11th Cir. 2020).

      Under the prior panel precedent rule, 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).

      Here, the district court did not err in determining Carroll’s base offense level

because our binding precedent in Smith forecloses his argument that his prior

conviction under Fla. Stat. § 893.13 is not a controlled substance offense because it

lacks a mens rea requirement as to the illicit nature of the controlled substance.

Therefore, the district court properly applied an enhanced base offense level based,

in part, on Carroll’s prior conviction for a controlled substance offense.

      AFFIRMED.




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