[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 17049 Non

- Argument Calendar

________________________ D.C. Docket No. 1:16

- cr - 20157

- MGC

- 1 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus TRACY ANTHONY SCOTT, Defendant

- Appellant.

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

________________________ ( August 11, 2017 ) Before TJOFLAT , WILLIAM PRYOR, and ROSENBAUM , Circuit Judges. PER CUR IAM: Tracy Scott is a federal prisoner serving a 140

- month sentence of imprisonment for possessing a controlled substance near a school and possessing a

Case: 16-17049 Date Filed: 08/11/2017 Page: 1 of 72 firearm as a convicted felon. The district court sentenced Scott as a “career offender” under § 4B1.1 of the United States Sentencing Guidelines because he had two prior convictions for “controlled substance offenses,” U.S.S.G. § 4B1.2(b), specifically two prior Florida convictions under Fla. Stat. § 893.13 (1)

. Scott contends that one of these convictions does not qualify as a predicate conviction under the care er - offender guideline because , after 2002, § 893.13 allows for a conviction regardless of whether the defendant knew that the substance possessed was an i llicit controlled substance. While conceding that we have rejected this same argument, see United States v. Smith , 775 F.3d 1262 (11th Cir. 2014) (holding that § 893.13 (1) is a “ controlled substance offense ” even though it lacks an element of mens rea ) , Scott maintains that Smith is in conflict with several Supreme Court decisions and with 28 U.S.C. § 994(h)

. Because we remain bound by Smith , we affirm Scott’s sentence. We review de novo the district court’s decision to classify a defendant as a career offender under § 4B1.1. United States v. Gibson , 434 F.3d 1234, 1243 (11th Cir. 2006). A defendant is a career offender if, among other things, he has at least
two prior felony conviction s for a “ controlled substance off ense. ” U.S.S.G. § 4B1.1(a). 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, distribut ion, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled Case: 16-17049 Date Filed: 08/11/2017 Page: 2 of 73 substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. Id . § 4B1.2(b). Under Florida law, the sale, manufacture, or delivery of cocaine, or the possession of cocaine with the intent to sell, manufacture, or deliver it, is a second

- degree felony punishable by a prison term of up to 15 years. See Fla. Stat. §§ 893.13(1) (a)1 , 775.082(3)(d). The Flo rida legislature has expressly eliminate [d] knowledge of the illicit nature of the controlled substance as an element of controlled substance offenses .” State v. Adkins , 96 So.3d 412, 415

– 16 (Fla. 2012). In Smith , we held that a prior conviction under § 893.13(1) is a “controlled substance offense” under U.S.S.G. § 4B1.2(b) even though it lacks an element of

mens rea . Smith , 775 F.3d at 1267

– 68

. Reviewing the plain language of § 4B1.2(b) ’s definition of “controlled subst ance offense,” we concluded that no

mens rea with respect to the illicit nature of the controlled substance wa s expressed or implied in the definition

. Id. at 1267. We also found that the presumption in favor of mental culpability and the rule of lenity did not require us to imply an element of mens rea in the guideline definition because the text of § 4B1.2(b) was

un ambiguous. Id

. (“ The presumption in favor of mental culpability and the rule of lenity apply to sentencing enhancements only when the text of the statute or guideline is ambiguous. ”).

Case: 16-17049 Date Filed: 08/11/2017 Page: 3 of 74 Smith ’s holding squarely forecloses Scott’s current challenge to the classification of his Fla. Stat. § 893.13 conviction as a “controlled substance offense” under § 4B1.2(b). U nder our prior

- precedent rule , that holding is

“ binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or this court sitting en banc .” United States v. Archer , 531 F.3d 1347, 1352 (11th Cir. 2008). And that holdi ng means that Scott’s sentence must be affirmed. To avoid that outcome, Scott maintains that Smith is in conflict with several Supreme Court decisions, but we disagree. First, he contends that Smith conflicts with Begay v. United States , 553 U.S. 137 (2008)

. But Smith was decided in 2014, well after Begay

. While Smith did not mention Begay , “a prior panel precedent cannot be circumvented or ignored on the basis of arguments not made to or considered by the prior panel.” In re Lambrix , 776 F.3d 789, 794 (11th Cir. 2015) (quot ation marks omitted). Because there is no “o verlooked reason or argument exception to the prior

- panel

- precedent rule, ” Begay offers Scott no relief from Smith

. Id. Nor, in any event, does Begay , which addressed the definition of “violent felony” under the Armed Career Criminal Act , “actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel

. ” United States v. Kaley , 579 F.3d 1246, 1255 (11th Cir. 2009)

.

Case: 16-17049 Date Filed: 08/11/2017 Page: 4 of 75 Second, Scott argues that E lonis v. United States , 135 S. Ct. 2001 (2015) , and McFadden v. United States , 135 S. Ct. 2298 (2015) , show that Smith erred in holding that mens rea is not an implied element of a “controlled substance offense” under U.S.S.G. § 4B1.2. But t hese cases do not involve the Sentencing Guidelines at all, much less the definition of a “controlled substance offense” in U.S.S.G. § 4B1.2. In McFadden , the Supreme Court interpreted the language of the Controlled Substance Analogue Act statutes themsel ves. 135 S. Ct. at 2305. Similarly, while the Supreme Court opined in Elonis that the omission of mens rea from a criminal statute does not eliminate a mens rea requirement, Elonis dealt with a different category of criminal offenses and concerned the el ements of proof necessary for a conviction. See 135 S. Ct. at 2008

– 12. Notably, neither McFadden

nor Elonis dealt with the issue here and in Smith , namely the construction of a particular definition in the S entencing G uidelines in relation to predicate o ffenses where the prior conviction explicitly did not require a mens rea element. Finally, Scott contends that Smith conflicts with the statutory command of 28 U.S.C. § 994(h)

. Section 994(h) directs the Commission to assure that defendants who have prior convictions for crimes of violence or for offenses “described in” several federal controlled

- substance statutes receive sentences at or near the maximum authorized term. All of the referenced statutes have an element of mens rea as to the illicit na ture of the drug. Scott argues that, if Smith is correct

Case: 16-17049 Date Filed: 08/11/2017 Page: 5 of 76 that predicate convictions under § 4B1.2(b)’s definition of “controlled substance offense” do not require an element of mens rea , the Commission exceeded its statutory authority under 2 8 U.S .C. § 99 4(h) by allowing strict

- liability offenses to be consid ered for purposes of the career

- offender guideline. After Scott filed his brief in this Court, however, we rejected the argument “that a prior conviction under a state statute that does not require knowledge of the illicit nature of the substanc e cannot qualify as an offense ‘ described in ’ the various federal statutes listed in § 994(h). ” United States v. Pridgeon , 853 F .3d 1192, 1200 (11th Cir. ), petition for cert. filed , (U.S. July 11, 2017 ) (No. 17

- 5135). We explained in Pridgeon that § 994(h) does not set out “a specific and exclusive list of predicate crimes that trigger maximal punishment.” Id. Rather, “§ 994 establishes a floor for the career offender category, rather than a ceiling.” Id. The Commission’s more general authority under § 994(a) allows it “to define ‘controlled substance offense’ to include crimes beyond those listed in § 994(h).” Id. And that authority includes being able to define “controlled substance offense” “in a way that includes offenses lacking an element of mens rea regarding the illicit nature of the controlled substance.” Id. at 1200 & n.3. In sum, we conclude that Smith ’s holding remains binding because it has not been overruled or undermined to the poi nt of abrogation. Archer , 531 F.3d at 1352 . Under Smith , Scott’s conviction under Fla. Stat. § 893.13 is a controlled

Case: 16-17049 Date Filed: 08/11/2017 Page: 6 of 77 substance offense under the Sentencing Guidelines. See Smith , 775 F.3d at 1267

– 68. Thus, the district court properly deemed Scott a career offender, and we affirm his sentence. AFFIRMED. Case: 16-17049 Date Filed: 08/11/2017 Page: 7 of 7