[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 12119
Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus DIAMANTE STOVEALL, a.k.a. Diamante K. Stoveall,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:21

- cr

- 60024

- WPD

- 1

____________________ USCA11 Case: 21-12119 Date Filed: 07/06/2022 Page: 1 of 52 Opinion of the Court 21

- 12119

Before J ILL P RYOR , B RANCH , and B LACK , Circuit Judges.

PER CURIAM: Diamante Stoveall appeals his sentence imposed after pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

. Stoveall a sserts his prior felony conviction under Flor ida Statutes § 893.13 for possession with intent to distribute marijuana is not a controlled substance offense under § 4B1.2(b) of the Sentencing Guidelines because the statute lacked an element of mens rea to secure a conviction, and therefore his base of fense level should have been 20 instead of 22. After review, 1 we affirm.
The Guidelines define a “controlled substance offense” as an offense under federal or state law, punishable by more than one year of imprisonment, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance, or possession of a controlled substance, with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. § 4B1.2(b). Pursuant to the Guidelines, a conviction for illega lly possessing a firearm carries a base offense level of 22 if, as relevant, the defendant had previously been convicted of a crime of violence or a controlled

1 We review de novo whether a prior conviction is a controlled substance offense under U.S.S.G. § 4B1.2(b). United States v. Lange , 862 F.3d 1290, 1293 (11th Cir. 2017). USCA11 Case: 21-12119 Date Filed: 07/06/2022 Page: 2 of 521

- 12119 Opinion of the Court 3

substance offense. Id. § 2K2.1(a)(3). Absent the qualifying predicate felony, the base offense level is 20. Id . § 2K2.1(a)(4)(B). Under Florida law, “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). In Travis Smith
, we held the definition of “controlled substance offense” under U.S.S.G. § 4B1.2(b) did not require “that a predicate state offense include s an element of mens rea with respect to the illicit nature of the controlled substance.” United States v. Travis Smith , 775 F.3d 1262, 1267

- 68 (11th Cir. 2014). Thus, we held convictions under Fla. Stat. § 893.13 qualified as a “ controlled substance offense ” under § 4B1.2(b)

. Id. at 1268. While Stoveall acknowledges our decision in Travis Smith , he contends the decision has been limited by the Supreme Court’s decision in Shular v. United States , 140 S. Ct. 779 (2020).

In Shular , the Supreme Court affirmed this Court’s holding that a conviction for selling cocaine under Fla. Stat. § 893.13 was a “serious drug offense” as defi ned under 18 U.S.C. § 924(e)(2)(A). 140 S. Ct. at 784. The Supreme Court concluded the “serious drug offense” definition “requires only that the state offense involve the conduct specified” under 18 U.S.C. § 924(e)(2)(A)(ii)

— specifically, “manufacturing, distributi o n, or possessing with intent to distribute, a controlled substance”

— but it did not require a “comparison to a generic offense.” Id. at 782

. Post

- Shular , this Court has held t he Supreme Court ’s decision in Shular did not overrule Travis Smith

. See United States v. USCA11 Case: 21-12119 Date Filed: 07/06/2022 Page: 3 of 54 Opinion of the Court 21

- 12119

Xavier Smith , 983 F.3d 1213, 1223 (11th Cir. 2020). In holding “that a court determining whether an offense qualifies as a serious drug offense need only consider whether the offense’s elements ‘necessarily en tail’ the types of conduct in the ACCA’s definition
, ” the Shular court affirmed the decision in “Shular’s case which relied on [ Travis ] Smith , that a prior conviction under Fla. Stat. § 893.13 qualifies as serious drug offense under the ACCA.” Id. The Supreme Court also noted “the petitioner in Shular had overstated Florida’s disregard for mens rea, because a defendant charged under Fla. Stat. § 893.13(1)(a) who was unaware of the substance’s illicit nature can raise that unawareness as an affirmative def ense, in which case the standard jury instructions require a finding of knowledge beyond a reasonable doubt.” Id. (quotation marks and alteratio n omitted). Stoveall’s argument that a mens rea is required for a crime to constitute a “controlled substance offense” under § 4B1.2(b) of the Sentencing Guidelines is foreclosed by our precedent in Travis Smith

. See United States v. Cruickshank , 837 F.3d 1182, 1187 (11th Cir. 2016) (explaining u nder the prior panel precedent rule, we are bound by our binding precedent “unless and until it is overruled by

us sitting en banc or by the Supreme Court” )

. Thus, t he district court did not err in applying a base offense level of 22 under § 2K 2.1(a)(3) because it correctly followed our holding in Travis Smit h that a conviction under § 893.13 is a controlled substance USCA11 Case: 21-12119 Date Filed: 07/06/2022 Page: 4 of 521

- 12119 Opinion of the Court 5
offense even though it does not include an element of mens rea

. 2 Accordingly, we affirm Stoveall’s sentence.
AFFIRMED.

2 T his Court’s recent decision in United States v. Jackson , __ F.3d. __, 2022 WL 2080280 (11th Cir. Ju ne 10, 2022) does not affect the disposition of this appeal because Stoveall’s conviction under Fla. Stat. § 893.13 was for possession with intent to distribute marijuana . The reasoning in Jackson was limited to Schedule II controlled substances, while ma rijuana is a Schedule I controlled substance. Id. at *5

- *7. USCA11 Case: 21-12119 Date Filed: 07/06/2022 Page: 5 of 5