[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 14989 Non

- Argument Calendar

________________________ D.C. Docket No. 1:11

- cr - 00040

- MW

- GRJ

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus COREE PATRICK, Defendant

- Appellant.

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

________________________ ( August 31, 2018 ) Before BRANCH, FAY and JULIE CA RNES , Circuit J udges. PER CURIAM:

Case: 17-14989 Date Filed: 08/31/2018 Page: 1 of 62 Coree Patrick appeals his 240

- month sentence for possession of a firearm by a convicted felon. Patrick challenges his designation as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), claiming that his prior Florida felony drug conviction does not qualify as a serious drug offense

. We affirm. I. BACKGROUND In 2011, Patrick sold four stolen firearms, along with ammunition, to a confidential source working for the Levy County Sheriff’s Office. P atrick subsequently was indicted with three counts of being a felon in possession of a firearm, in violation of 18 U .S.C. §§ 922(g)(1) and 924(e) . A jury found Patrick guilty on all counts and a probation officer prepared a presentence investigation report (“PSI”). After grouping the three counts together, 1 the PSI applied a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) , gave a two

- level increase under U.S.S.G. § 2K2.1(b)(1) because the o ffense involved four firearms, and gave a two

- level enha ncement under U.S.S.G. § 2K2.1(b)(4) because the firearms involved in the offense were stolen. The PSI further reported that Patrick qualified as an armed career criminal under U.S.S.G. § 4B1.4(a) and his base offense level was increased to 33 under U.S.S .G. § 4B1.4(b)(3)(B )

.

1 U.S.S.G. § 3D1.2(c).

Case: 17-14989 Date Filed: 08/31/2018 Page: 2 of 63 T he PSI noted, in relevant part, that Patrick had two prior convictions for a violent felony and one prior conviction for a serious drug offense. Patrick’s prior convictions for a violent felony included a 1994 Florida conviction for aggravated battery with a firearm and robbery with a firearm, as well as a 2001 Florida conviction for aggravated battery. Patrick’s prior conviction for a serious drug offense was a 2010 Florida conviction for possession of cocaine with intent to sell

o r deliver, in violation of section 893.13(1) of the Florida Statutes. Based on a total offense level of 33 and a criminal history category of VI, the resulting guideline range was 235 to 293 months of imp risonment. The statutory range for each count was 1 5 years of imprisonment with a maximum of life, pursuant to 18 U.S.C. § § 922(g)(1) and 924(e). At Patrick’s first sentencing hearing, the district court did not inform Patrick of his right to allocute before imposing its sentence. The district court sentenced him to 264 months of imprisonment on each count, to run concurrently, followed by 5 years of supervised release on ea ch count, to run concurrently. Patrick’s convictions were affirmed on appeal. United States v. Patrick , 536 F. App’x 840 (11th Cir. 2013). Patrick filed a motion to vacate or set aside his sentence under 28 U.S.C. § 2255, arguing that he was denied a constitutional fair trial because he was not afforded his right to allocute. Af ter the government responded and Patrick replied, Case: 17-14989 Date Filed: 08/31/2018 Page: 3 of 64 a magistrate judge issued a report and recommendation recommending that the

mo tion be granted on that basis. The district court adopted the report and recommendation and set the case for resentencing. At resentencing, Patrick objected to the application of a sentencing enhancement under the ACCA. He argued that his prior drug conviction did not qualify as a serious drug offense under the ACCA because the statute under which he was convicted lacked the essential mens rea element. While he acknowledged that his argument was foreclosed by our precedent, he argued that the precedent was wrongly decided because it did not employ the categorical approach. The district court overruled the objection. The cou rt sentenced Patrick to 240 months of imprisonment on each count, to run concurrently, followed by 5 years of supervised release on ea ch count, to run concurrently. II. DISCUSSION On appeal, Patrick argues that his sentence was improperly enhanced under the ACCA because his prior Florida felony drug conviction under section 893.13(1) of the Florida Statutes does not qualify as a serious drug offense. We review de novo whether a pri or conviction qualifies as a serious drug offense under the ACCA. United States v. Robinson , 583 F.3 d 1292, 1294 (11th Cir. 2009). The ACCA defines a “serious drug offense” as, inter alia , “an offense under State law, involving manufacturing, distribut ing, or possessing with intent to

Case: 17-14989 Date Filed: 08/31/2018 Page: 4 of 65 manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Under Florida law, it is a crime to “sell, manufa cture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat. § 893.13(1)(a).
In United States v. Smith , 775 F.3d 1262 (11th Cir. 2014), we held that a prior conviction under section 893.13(1) qualified a s a predicate serious drug offense under the ACCA. Id. at 1267

- 68. There, the defendants that had be en convicted of violating section 893.13(1) argued that their convictions did not qualify as predicate serious drug offenses under the ACCA because section 893.13(1) did not require a mens rea element regarding the illicit nature of the controlled substance and therefore did not meet the generic definition of a serious drug offense

. Id. at 1266

- 67. We stated that we did not need to compare section 8 93.13(1) to the generic definition because the term “serious drug offense” was unambiguously defined by the ACCA, which did not require a mens rea element. Id. at 1267

- 68. Patrick’s argument that section 893.13(1) is not a predicate serious drug offens e under the ACCA is foreclosed by our holding in Smith

. Id. Although Patrick argues that Smith was wrongly decided, that decision remains binding unless and until i t is overruled or abrogated by this court sitting en banc or by the

Case: 17-14989 Date Filed: 08/31/2018 Page: 5 of 66 Supreme Court

. See United States v. Romo

- Villalobos , 674 F.3d 1246, 1251 (11th Cir. 2012) (recognizing that a prior panel’s decision 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)

. Accordingly, the district court did not err in concluding Patrick’s Florida conviction for possession of cocaine qualified as a serious drug offense under the ACCA. AFFIRMED. Case: 17-14989 Date Filed: 08/31/2018 Page: 6 of 6