[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-13193

Non-Argument Calendar

________________________

D.C. Docket Nos. 1:13-cv-23468-DLG,

1:10-cr-20844-DLG-1

TOM MAURICE JONES,

 Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 31, 2016)

Before TJOFLAT, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM: 

Tom Maurice Jones appeals the denial of his 28 U.S.C. § 2255 motion to 

vacate, set aside, or correct his sentence. We affirm.

Case: 15-13193 Date Filed: 05/31/2016 Page: 1 of 7 
2

I. BACKGROUND

Jones was charged with and convicted of one count of being a felon in 

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). 

Because Jones had six prior convictions under Fla. Stat. § 893.13, which prohibits 

the sale, manufacture, or delivery of, or possession with intent to sell, manufacture, 

or deliver controlled substances, the presentence investigation report (“PSR”) 

states he was subject to an enhanced sentence under the Armed Career Criminal 

Act (“ACCA”), 18 U.S.C. § 924(e). Based on his armed-career-criminal status, 

Jones had a total-offense level of 33 and a criminal-history category of VI, 

resulting in a Sentencing Guidelines range of 235 to 293 months of imprisonment. 

At sentencing, Jones objected to the ACCA enhancement, because his prior 

convictions were not presented at trial and proved to the jury beyond a reasonable 

doubt; the district judge overruled his objection. The judge varied downward from 

the Guidelines range and imposed a sentence of 211 months of imprisonment. We 

affirmed Jones’s conviction and sentence on direct appeal. United States v. Jones, 

479 F. App’x 874, 875 & n.1 (11th Cir. 2012).

Thereafter, Jones filed a pro se § 2255 motion, raising a single claim of 

ineffective assistance of counsel. Jones later moved to supplement his motion to 

include the additional claim that his prior convictions under Fla. Stat. § 893.13 did 

not constitute “serious drug offenses” under the ACCA or “controlled substance 

Case: 15-13193 Date Filed: 05/31/2016 Page: 2 of 7 
3

offenses” under the career-offender guidelines. A magistrate judge granted Jones’s 

motion to supplement and appointed counsel for him. Following the appointment 

of counsel, Jones filed a memorandum of law in support of his supplemental 

motion to vacate. He argued his convictions under Fla. Stat. § 893.13(1) were not 

serious drug offenses for purposes of the ACCA, because the Florida statute lacked 

a mens rea element respecting the illicit nature of the substance; consequently, it

was broader than the generic offense.

The government responded Jones’s argument was foreclosed by our decision 

in United States v. Smith, 775 F.3d 1262 (11th Cir. 2014), cert. denied, 135 S. Ct. 

2827 (2015), which held convictions under § 893.13(1) qualified as “serious drug 

offenses” under the ACCA and “controlled substance offenses” under the careeroffender guidelines, because neither of those provisions required that predicate 

offenses contain a mens rea element respecting the illicit nature of the substance. 

Id. at 1267-68. Jones replied the decision in Smith was not yet final, because a 

petition for rehearing en banc was pending and noted the Supreme Court recently 

had granted certiorari in McFadden v. United States, 576 U.S. __, 135 S. Ct. 2298, 

192 L. Ed. 2d 260 (2015), to resolve an analogous question concerning the mens 

rea element for convictions under the Controlled Substance Analogue Enforcement 

Act (“Analogue Act”).

Case: 15-13193 Date Filed: 05/31/2016 Page: 3 of 7 
4

A magistrate judge issued a Report and Recommendation (“R&R”), 

recommending Jones’s motion to vacate be denied. Concerning his ineffectiveassistance claim, the magistrate judge concluded Jones had failed to establish 

prejudice and was entitled to no relief. Regarding his challenge to the use of his 

§ 893.13 convictions as ACCA predicate offenses, the magistrate judge noted we

recently had rejected Jones’s argument in Smith. Consequently, Jones was 

precluded from arguing his § 893.13 convictions were not serious drug offenses. 

The magistrate judge concluded a certificate of appealability (“COA”) was not 

warranted, because Jones had not demonstrated he had been denied a constitutional 

right or that reasonable jurists could debate the issue.

Jones objected to the R&R, reiterated the arguments raised in his reply, and 

asserted the magistrate judge had erred in recommending a COA not issue. The 

district judge denied Jones’s motion to vacate but disagreed with the magistrate 

judge’s recommendation regarding the issuance of a COA. The judge found a

COA was warranted in view of the pending petition for certiorari in Smith and the 

grant of certiorari in McFadden; accordingly, the judge granted a COA regarding

only Jones’s ACCA claim.

On appeal, Jones argues we should reconsider Smith, because it was wrongly 

decided for a number of reasons. He also asserts the Supreme Court’s recent 

Case: 15-13193 Date Filed: 05/31/2016 Page: 4 of 7 
5

decision in McFadden, while not binding in this case, suggests his interpretation of 

the Guidelines is correct.

II. DISCUSSION

In reviewing the denial of a § 2255 motion, we review factual findings for 

clear error and questions of law de novo. Dell v. United States, 710 F.3d 1267, 

1272 (11th Cir. 2013). We review de novo whether a prior conviction is a serious 

drug offense within the meaning of the ACCA. United States v. Robinson, 583 

F.3d 1292, 1294 (11th Cir. 2009). Under the prior-panel-precedent rule, we are 

bound by the holding of a prior panel unless and until it is overruled or undermined 

to the point of abrogation by a decision of the Supreme Court or an en banc 

decision if our court. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 

2008).

The ACCA provides a person, who violates 18 U.S.C. § 922(g) and has three 

previous convictions for a serious drug offense, shall be subject to a mandatoryminimum sentence of 15 years of imprisonment. 18 U.S.C. § 924(e)(1). In 

relevant part, a “serious drug offense” is defined as “an offense under State law, 

involving manufacturing, distributing, or possessing with intent to manufacture or 

distribute, a controlled substance . . ., for which a maximum term of imprisonment 

of ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii). The careeroffender guidelines provide a defendant is a career offender, if he has at least two 

Case: 15-13193 Date Filed: 05/31/2016 Page: 5 of 7 
6

prior felony convictions for a controlled-substance offense. U.S.S.G. § 4B1.1(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.” U.S.S.G. § 4B1.2(b).

Under Florida law, it is unlawful to “sell, manufacture, or deliver, or possess 

with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat. 

§ 893.13(1)(a). For offenses under Fla. Stat. § 893.13 committed after 2002, 

“knowledge of the illicit nature of a controlled substance is not an element of [the]

offense.” Fla. Stat. § 893.101(2). Therefore, a defendant may be convicted under 

§ 893.13(1)(a) even if he was unaware the substance he possessed was a controlled 

substance. See id. In Smith, we held convictions under Fla. Stat. § 893.13(1) 

qualify as “serious drug offenses” for purposes of the ACCA and “controlled 

substance offenses” for purposes of the career-offender guidelines, despite the lack 

of a mens rea element in § 893.13, because neither the ACCA definition of 

“serious drug offense” nor the Guidelines definition of “controlled substance 

offense” includes a mens rea element regarding the illicit nature of the controlled 

substance. Smith, 775 F.3d at 1267-68.

Case: 15-13193 Date Filed: 05/31/2016 Page: 6 of 7 
7

In McFadden, the Supreme Court addressed the mens rea required for a 

conviction under 21 U.S.C. § 841(a)(1), when the controlled substance at issue was 

a controlled-substance analogue. McFadden, 576 U.S. at __, 135 S. Ct. at 2302. 

The Court held § 841(a)(1) required the government to prove the defendant knew 

he was dealing with a controlled substance, meaning he either knew the substance 

was controlled under the Controlled Substances Act or Analogue Act or knew the 

specific features of the substance that made it a controlled-substance analogue. Id.

Our decision in Smith squarely forecloses Jones’s argument that convictions 

under § 893.13(1) cannot constitute serious drug offenses or controlled substance 

offenses, because the statute lacks a mens rea element. See Smith, 775 F.3d at 

1267-68. Smith has not been overturned or abrogated by an en banc decision of 

our court or by the Supreme Court; therefore, it remains binding precedent. 

Archer, 531 F.3d at 1352. Additionally, McFadden does not control the outcome 

of this case, because it did not address the mens rea requirement for serious drug 

offenses under the ACCA or controlled-substance offenses under the careeroffender guidelines. See McFadden, 576 U.S. at __, 135 S. Ct. at 2302. The 

district judge did not err in denying Jones’s § 2255 motion. 

AFFIRMED.

Case: 15-13193 Date Filed: 05/31/2016 Page: 7 of 7