[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 10580 Non

- Argument Calendar

________________________ D.C. Docket No. 9:18

- cr - 80208

- RLR

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus HENRY HORA CE GIVINS, Defendant

- Appellant.

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

________________ ________ ( May 5, 2020 ) Before WILLIAM PRYOR , JILL PRYOR, and TJOFLAT , Circuit Judges.
PER CURIAM:

Case: 19-10580 Date Filed: 05/05/2020 Page: 1 of 42 Henry Givins appeals his 120

- month sentence for possession with intent to distribute cocaine and fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). He argues that the District Court erred in sentencing him as a career offender under § 4B1.1(a) of the U.S. Sentencing Guidelines based on his two Florida convictions for sale of cocaine and his Florida conviction for possession of cocaine with intent
to sell

. He c laims that these offenses do not qualify as predicate “controlled substance offense[s]” within the meaning of U.S.S.G. § 4B1.2(b) because Florida law does not contain a mens rea element regarding the illicit nature of the controlled substance.
We review de novo a district court’s interpretation and application of the Sentencing Guidelines, including its 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). We also review de novo whether a defendant’s prior conviction qualifies as a “controlled substance offense” under the Sentencing Guidelines. United States v. Lange , 862 F.3d 1290, 1293 (11 th Cir. 2017). We must follow a prior binding precedent unless and until it is overruled by this Court sitting en banc or the Supreme Court. United States v. Vega

- Castillo , 540 F.3d 1235, 1236 (11th Cir. 2008). Section 4B1.1 of the Sentencing Guidelin es provides that a defendant is a career offender if he was at least eighteen years old when he committed the instant

Case: 19-10580 Date Filed: 05/05/2020 Page: 2 of 43 offense of conviction , the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense , and the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense . U.S.S.G. § 4B1.1(a). It defines a “controlled substance offense” as an offense under federal or state law that is punishable by a term of imprisonment greater than one year and that prohibits, among other things, the distribution of a controlled substance or the possession of a controlled substance with intent to distribute. Id. § 4B1.2(b).
In United States v. Smith , we reject ed the argument that an offense under Fla. Stat. § 893.13(1) for possession of a controlled substance with intent to sell was not a “controlled substance offense” within the meaning of U.S.S.G. § 4B1.2(b) because it lacked a mens rea element and therefore did not meet the generic definition of a controlled substance offense . 775 F.3d 1262, 1267 (11th Cir. 2014). We reason ed that it was unnecessary to look for the elements of a generic definition of a “controlled substance offense” because th at term is def ined in the Guidelines , and the Guidelines definition d oes not require, either explicitly or implicitly, that a predicate state offense include an element of mens rea with respect to the illicit nature of the controlled substance. Id. at 1267

– 68

. T he Guideline s definition merely require s that the predicate offense “ prohibit [] ” certain conduct relating to controlled substances, including , among other things , the

Case: 19-10580 Date Filed: 05/05/2020 Page: 3 of 44 posse ssion of a controlled substance with the intent to distribute. Id. at 1267. Since Fla. Stat. § 893.13(1) prohibit ed that conduct , we concluded that Fla. Stat. § 893.13(1) was a controlled substance offense under § 4B1.2(b). Id

. at 1267

– 6 8. Givins acknowledges that his argument

— that his Florida drug offenses do not qualify as predicate offenses because of the lack of a mens rea element regarding the illicit nature of the substance

— is foreclosed by our precedent in Smith

. Based on our binding precedent in Smith , t he District Court did not err in sentencing Givins as a career offender because his Florida drug offenses qualify as

“ controlled substance offense [ s ]” under U.S.S.G. § 4B1.2(b). Accordingly, we affirm. AFFIRMED. Case: 19-10580 Date Filed: 05/05/2020 Page: 4 of 4