[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-13299

Non-Argument Calendar

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D.C. Docket No. 1:14-cr-20014-WJZ-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

TRAVIS LAMONT SMITH,

a.k.a. Hound, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(June 9, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Travis Lamont Smith appeals his sentence of 188 months’ imprisonment, 

imposed at the upper end of advisory guidelines range, after pleading guilty to one 

count of conspiracy to possess with intent to distribute heroin and crack cocaine, in 

violation of 21 U.S.C. § 846. On appeal, Smith argues that he was improperly 

sentenced as a career offender under U.S.S.G. § 4B1.1(a) because his three prior 

convictions under section 893.13(1) of the Florida Statutes were not “controlled 

substance offenses” within the meaning of the career offender provision. Smith 

argues that a prior conviction can only be a “controlled substance offense” if it is 

“substantially similar” to the federal drug trafficking definition. Unlike federal law, 

his convictions under section 893.13(1) did not have a mens rea element, so they 

could not be “controlled substance offenses.” He also argues that his prior 

offenses were related, and thus should not be counted separately, because the 

conduct in each was essentially the same, and because two of the three were 

consolidated for purposes of plea and sentencing. 

We review de novo the district court’s decision to classify a defendant as a 

career offender under U.S.S.G. § 4B1.1. United States v. Gibson, 434 F.3d 1234, 

1243 (11th Cir. 2006). Sentencing arguments raised for the first time on appeal are 

reviewed only for plain error. United States v. Bonilla, 579 F.3d 1233, 1238 (11th 

Cir. 2009).

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A defendant is a career offender if, among other things, he has at least two 

prior felony convictions for a controlled substance offense. U.S.S.G. § 4B1.1(a). 

A defendant will have “two prior felony convictions” if he was convicted before 

committing the current offense and if at least two of the sentences are counted 

separately under the Guidelines. Id. § 4B1.2(c). Prior sentences always are 

counted separately if imposed for offenses that were separated by an intervening 

arrest—that is, the defendant was arrested for the first offense before committing 

the second. Id. § 4A1.2(a)(2). A “controlled substance offense”

means 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 a counterfeit 

substance) or the possession of a controlled substance (or 

a counterfeit substance) with intent to manufacture, 

import, export, distribute, or dispense.

Id. § 4B1.2(b). 

Florida law punishes the sale, manufacture, delivery, or possession with 

intent to sell, manufacture, or deliver, of cocaine as a second-degree felony. See 

Fla. Stat. § 893.13(1)(a)(1). Doing the same with marijuana within 1000 feet of a 

school is also a second-degree felony. See id. § 893.13(1)(c)(2). Second-degree 

felonies are punishable by up to 15 years of imprisonment. Id. § 775.082(3)(d). 

We have previously determined that a conviction under section 893.13(1) is a 

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“controlled substance offense” under § 4B1.2(b) in United States v. Smith, 775 

F.3d 1262, 1267–68 (2014). 

We have already rejected the mens rea argument that Smith raises for the 

first time on appeal, so his argument lacks merit even if it had been preserved. See 

Smith, 775 F.3d at 1267. Here, Smith was properly sentenced as a career offender 

because his prior marijuana and cocaine convictions were offenses under state law, 

punishable by a term of imprisonment exceeding one year, and concerned the 

distribution or dispensing, or possession with intent to distribute or dispense, of a 

controlled substance. See Smith, 775 F.3d at 1267–68; see also U.S.S.G. 

§ 4B1.2(b). Smith’s convictions were based on three different arrests committed 

before the offense on appeal, so the district court properly concluded that Smith 

had two or more prior felonies, even if the conduct in each was similar. U.S.S.G. 

§ 4B1.2(c); see id. § 4A1.2(a)(2). We affirm.

AFFIRMED.

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