[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 13945 Non

- Argument Calendar

________________________ D.C. Docket No. 1:13

- cr - 20383

- KMW

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus TIMOTHY SMITH, Defendant

- Appellant.

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

________________________ (October 22, 2018) Before WILLIAM PRYOR , BRANCH and FAY , Circuit Judges. PER CURIAM:

Case: 17-13945 Date Filed: 10/22/2018 Page: 1 of 62 Timothy Smit h appeals the partial denial of his motion to vacate his sentence. 28 U.S.C. § 2255. T he district court vacated Smith ’ s s entence of 180 months of imprisonment under the Armed Career Criminal Act on the ground that his prior conviction for attempted manslau ghter no longer qualified as a crime of violence after Johnson v. United States , 135 S. Ct. 2551 (2015), but it r eject ed a similar challenge to Smith’ s prior conviction for armed robbery as foreclosed by United States v. Fritts , 841 F.3d 937 (11 th Cir. 2016)

. Smith argues that his newly

imposed sentence of 108 months of imprisonment under the Sentencing Guidelines is procedurally and substantively unreasonable. Smith also argues , for the first time on appeal , that he did not receive notice “ that 18 U.S.C. § 924(a) was going to be used to calculate his offense level,” in violation of his right to due process under the Fifth Amendment . We affirm. We review the reasonableness of a sentence under a deferential standard for abuse of discretion. United States v. Azmat , 805 F.3d 1018, 1047 (11th Cir. 2010). We review whether the district court committed a procedural error, such as failing to calculate the guideline range or to explain the chosen sentence, and then we examine whether the sentence i s substantively reasonable. Gall v. United States , 552 U.S. 38, 51 (2007). “ When a party raises an argument for the first time on appeal, this Court reviews for plain error. ” United States v. Lange , 862 F.3d 1290, 1293 (11th Cir.), cert. denied , 138 S. Ct. 488 (2017) . To prevail under that

Case: 17-13945 Date Filed: 10/22/2018 Page: 2 of 63 standard, the defendant must prove that an error occurred that is plain and that affects his substantial rights. Id. The district court did not procedurally err by counting Smith’s prior conviction for armed robbery as a predicate offense when determining his base offense level under the Guidelines

. As Smith concedes , his p rior conviction for armed robbery, Fla. Stat. § 812.13(2), qualifies categorically as a crime of violence under Fritts

. 841 F.3d at 939

– 42 (discussing United States v. Dowd , 451 F.3d 1244 (11th Cir. 2006), and United States v. Lockley , 632 F.3d 1238 (11th Cir. 2011)); United States v. Seabrooks , 839 F.3d 1326, 1338

– 45 (11th Cir. 2016). Fritts “is the law of this Circuit[ and] . . . bind[s] all subsequent panels unless and until the . . . holding is overruled by the Court sitting en banc or by the Supreme Court.” Seabrooks , 839 F.3d at 1341 (quoting Smith v. GTE Corp. , 236 F.3d 1292, 1300 n.8 (11th Cir. 2001)). Because Smith possessed a Romarm Cugir semiau tomatic rifle that “is capable of accepting a large capacity magazine . . . and [he has] at least [one] f elony conviction [] of

. . . a crime of violence [and of] a controlled substance offense,” the district court correctly calculated Smith’s sentenc ing ra nge using a base offense level of 26. See United Sentencing Guidelines Manual § 2K2.1(a)(1) (Nov. 2016). Smith a sks us t o stay his appeal until the Supreme Court issues its decision
in Stokeling v. United States , 138 S. Ct. 1438 (2018), but a stay is not appropriate

.

Case: 17-13945 Date Filed: 10/22/2018 Page: 3 of 64 W e remain bound by our precedent in Fritts despite the grant of certiorari in Stokeling , which involv es an unarmed robbery. “ Until the Supreme Court issues a decision that actually changes the law, we are duty

- bound to apply this Court ’ s
prece dent ” that forecloses Smith’s challenge to his sentence. See Gissendaner v.
Comm ’r, G a . Dep’ t of Corr. , 779 F.3d 1275, 1284 (11th Cir. 2015) . Smith also
argues in his reply brief that his conviction for attempted second degree murder does not qualify as a crime of violence, but we decline to address an argument that Smith omitted from his initial brief. See Herring v. Sec ’ y, Dep ’ t of Corr. , 397 F.3d 1338, 1342 (11th Cir. 2005)

. The district court also did not abuse its discretion by varying below Smith’s advisory guideline range to impose a sentenc e o f 108 months of imprisonment. Smith pleaded guilty to being a felon in possession of a firearm and, as the district
court foun d, Smith had an “extensive criminal history” with conviction s for attempted manslaughter, aggravated battery of a pregnant victim, battery, possession with intent to sell or deliver cocaine, attempted second degree murder with a deadly weapon, and armed robbery with a firearm. T he district court also was entitled t o consider other misconduct charged in Smith’s indictment, to which
h e admitted by “fail[ing] to object to [the] allegations of fact in [his presentence report],” United States v. Wade , 458 F.3d 1273, 1277 (11th Cir. 2006), that he s old thousands of dollars in illegal drugs and nine firearms to undercover federal agents.

Case: 17-13945 Date Filed: 10/22/2018 Page: 4 of 65 See 18 U.S.C. § 3661 (“ No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the Unit ed States may receive and consider for the purpose of imposing an appropriate sentence. ”). The district court consider ed Smith’s argument for leniency based on “the statutory [sentencing] factors” and “the presentence report, ” which described Smith’s adole scent struggle with hyperactivity, a sexual assault he suffered in prison, and his completion of educational courses. See 18 U.S.C. § 3553(a). The district court also considered as “important factor[s]” that Smith “complet[ed] . . . the Anger Management
Pr ogram, . . . [and] receiv[ed] [an] HVAC certification.” And the district court rewarded Smith for his “steps forward . . . in prison” by varying downward and sentencing him to a term two months below the low end of his advisory guideline range of 110 to 12 0 months. Smith’s sentence, which is well below his maximum statutory sentence of 10 years of imprisonment, is substantively reasonable. Smith argue s , for the first time, that he was denied due process because his indictment failed to allege that section 924(a) would “ be used .

. . to calculate his offense level” at resentencing, but an indictment “ need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime ,” Almendarez

- Torres v. United States , 523 U.S. 224, 228 (1998) . A f ter Smith succeeded in having his sentence as an armed career criminal vacated, his plea of

Case: 17-13945 Date Filed: 10/22/2018 Page: 5 of 66 guilty to possessing a firearm as a felon exposed him to a statutory sentence in prison for up to 10 years. See 18 U.S.C. §§ 922(g), 924(a) (2) ; Welch v. United
States , 136 S. Ct. 1257, 1261 (2016) . Smith requested a sentence less than the statutory maximum and received the relief that he sought. The district court committed no error, much less plain error, by using section 924(a) to calculate Smith’s of fense level

. We AFFIRM Smith’s sentence. Case: 17-13945 Date Filed: 10/22/2018 Page: 6 of 6