[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 10307 Non

- Argument Calendar

________________________ D.C. Docket No. 3:19

- cr - 00099

- RV

- 1

UNITED STATES OF AMERICA,

Plaintif f

- Appellee,

versus
CHARLESTON PIERRE WIGGINS,

Defendant

- A ppellant.

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

________________________ ( January 13, 2021 ) USCA11 Case: 20-10307 Date Filed: 01/13/2021 Page: 1 of 52 Before WILSON , MARTIN , and BRANCH , Circuit Judges.
PER CURIAM: Charleston Wiggins appeals his 76

- month sentence that was imposed after he was convicted for being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Wiggins argues that the district court erred in relying on United
States v. Smith , 775 F.3d 1262 (11th Cir. 2014 ) , to find that his conviction under Fla. Stat. § 893.13 qualified as a controlled substance offense under the Sentencing Guidelines . Wiggins claims that the Supreme Court’s decision in Shular v. United
States , 140 S. Ct. 779 (2020), abrogated our holding in Smith

. Additionally, Wiggins claims that Fla. Stat. § 893.13 is broader than the Guidelines ’ definition of

a controlled substance offense because it does not include a mens rea requirement as to the illicit nature of t he controlled substance and it applies to both attempted and fully completed controlled substance crimes

. I.
We review de novo whether a prior conviction qualifies as a controlled substance offense under the Sentencing Guidelines

. United States v. Bishop , 940 F.3d 1242, 1253 (11th Cir. 2019), cert
. denied , 140 S. Ct. 1274 (2020). The Guidelines provide that a base offense leve l of 20 applies to a defendant who commits any part of a firearms offense after “ sustaining one felony conviction

USCA11 Case: 20-10307 Date Filed: 01/13/2021 Page: 2 of 53 of either a crime of violence or a controlled substance offense. ” U.S.S.G. § 2K2.1(a)(4)(A). A “controlled substance offense” is 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.” Id. § 4B1.2(b). The commentary to § 4B1.2 states that an attempt to commit a controlled substance offense is a qualifying predicate offense. Id. § 4B1.2, cmt . 1. This commentary is a binding in terpretation of the term “controlled substance offense.” United States v. Lange , 862 F.3d 1290, 1294 (11th Cir. 2017).
In Smith , we held that Fla. Stat. § 893.13 is categorically a “controlled substance offense” under § 4B1.2(b) and a “serious drug offense” under the Armed Career Criminals Act ( ACCA ) , 18 U.S.C. § 924(e)(2)(A)(ii). 775 F.3 d at 1268

. In relevant part, Fla. Stat. § 893.13 provides that a person “ may not sell, manuf acture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. ” Fla. Stat. § 893.13(1)(a). We found i n Smith that neither the definition of “serious drug offense” under the ACCA nor “controlled substance offense” under the Guidelines require “that a predicate state offense include an element of

mens rea with respect to the illicit nature of the controlled substance.” 775 F.3 d at 126 8 ; see also United States v. Pridgeon , 853 F.3d 1192, 1200 (11th Cir. 2017 )

USCA11 Case: 20-10307 Date Filed: 01/13/2021 Page: 3 of 54 ( rejecting the argument that Smith was wrongly decided because Fla. Stat. § 893.13 does not include a mens rea element as to the illicit nature of the controlled substance) ; Bishop , 940 F.3d at 1254 (same)

. In Shular , t he Supreme Court affirmed the Eleventh Circuit’s holding that Fla. Stat. § 893.13 qualifies as a “serious drug offense” under the ACCA

. 140 S.
Ct. at 782. In that case , Eddie Shular appealed his sentence , arguing that the district court erred in determining that his prior conviction under Fla. Stat. § 893.13 qualified as a predicate ACCA felony. Id. Shular claimed that Smith was wrongly decided and tha t “the court must first identify the elements of the

‘ generic ’ offense [ named in the ACCA] , then ask whether the elements of the state offense match those of the generic crime.” Id. And similar to Wiggins’ argument in this case , Shular said that because Fla. Stat. § 893.13 did not include a mens rea requirement it did “not match the generic offenses in” the ACCA. Id. The Eleventh Circuit relied on Smith and the prior precedent rule to affirm the district
court’s sentence. On appeal, t he Supreme Court ultimately affirmed , finding that the ACCA “‘serious drug offense’ definition requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offe nses.” Id.

“ Under the prior precedent rule, we are bound to follow a prior binding precedent unless and until it is overruled by this court en banc or by the Supreme

USCA11 Case: 20-10307 Date Filed: 01/13/2021 Page: 4 of 55 Court.” United States v. Romo

- Villalobos , 674 F.3d 1246, 1251 (11th Cir. 2012) (per curiam)

. “ To constitute an ‘ overruling ’ for the purposes of the prior panel precedent rule, a Supreme Court decision ‘ must be clearly on point. ’ ” United States v. Kaley , 579 F.3d 1246, 1255 (11th Cir. 2009). Additionally, the Supreme Court decision must “actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.” Id.
II. The district court did not err in sentencing Wiggins. First, Shular did not overrule or abrogate our holding in Smith

. 140 S. Ct. at 782. In fact, the Court affirmed our decision , which we based on Smith

. 1 B ecause Smith has not been abrogated, we are bound to hold that Fla. Stat. § 893.13 is a controlled substance offense under U.S.S.G. § 4B1.2(b)

. See Romo

- Villalobos , 674 F.3d at 1251

. Second , we are bound by the commentary to § 4B1.2 , which says that an attempt to commit a controlled substance offense qualifies as a predicate felony under the Guidelines. See Lange , 862 F.3d at 1294. Accordingly, we affirm Wiggins’ 76

- month sentence under 18 U.S.C. §§ 922(g)(1), 924(a)(2)

. AFFIRMED.

1 While the Supreme Court did not rely on Smith in its own analysis, it recognized that we relied on Smith in affirming Shular’s sentence. Id. at 784.

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