[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 13193 Non

- Argument Calendar

________________________ D.C. Docket No s . 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 72 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”)
stat es 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 - crim inal status, Jones had a total

- offense level of 33 and a criminal

- history category of VI, resulting in a Sentencing G uideline s 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 prove d to the jury beyond a reasonable doubt ; the district judge overruled his objection. The judge varied downward from the G uideline s 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 73 offenses” under the career

- offender guidel ines . 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 th e ACCA and “controlled substance offenses” under the career

offender 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 replie d 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 74 A magistrate judge issued a R eport and R ecommendation (“R&R”), recommending Jones’s motion to vacate be denied. Concerning his ineffective

assistance 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. T he 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 reason able jurists could debate the issue. Jones objected to the R&R, reiterat ed the arguments ra ised in his reply , and
assert ed 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 75 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 mo tion, 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 mean ing 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 c ourt. 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 mandatory

mini mum 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 contro lled substance

. . ., for which a maximum term of imprisonment of ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii). The career

offender 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 76 prior felony convictions f or 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, o r 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 neith er the ACCA definition of “serious drug offense” nor the Guidelines definition of “controlled substance offense” includes a mens rea element re gard ing 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 77 In McFadden , the Supreme Cou rt 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

- substan ce 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 a n en banc decision of

our c ourt 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 career

offender guidelines. See McFadden , 576 U.S. at __, 135 S. Ct. at 2302. T he district judge did not err i n denying Jones’s § 2255 motion. AFFIRMED. Case: 15-13193 Date Filed: 05/31/2016 Page: 7 of 7