[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-15031

Non-Argument Calendar

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D.C. Docket No. 9:19-cr-80085-RAR-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

VIGUENS CIUS,

Defendant-Appellant.

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Appeal from the United States District Court

Southern District of Florida

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(October 22, 2020)

Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.

PER CURIAM:

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Viguens Cius (“Cius”) appeals his sentence following his guilty plea for one 

count of distribution of a controlled substance and one count of possession with 

intent to distribute a controlled substance, both in violation of 21 U.S.C. § 841(a)(1), 

(b)(1)(C), as well as one count of possession of a firearm in furtherance of a drug 

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal, Cius argues 

that the district court erred in classifying him as a career offender under the U.S. 

Sentencing Guidelines because his four prior state felony convictions under Florida 

Statute § 893.13 do not constitute “controlled substance offenses” under the 

Sentencing Guidelines. Because our precedent forecloses Cius’s argument, we 

affirm his sentence. 

I. FACTUAL AND PROCEDURAL HISTORY

Cius entered into a plea agreement, which specifically acknowledged the 

possibility of the district court classifying him as a career offender. After the district 

court accepted Cius’s guilty plea, a probation officer prepared a presentence 

investigation report. Under U.S. Sentencing Guidelines § 2K2.1, a defendant who 

previously committed “at least two felony convictions of . . . a controlled substance 

offense” receives a base offense level of twenty-four. U.S.S.G. § 2K2.1(a)(2) 

(emphasis added). The Sentencing Guidelines define a “controlled substance 

offense” as a state or federal law offense, “punishable by imprisonment for a term 

exceeding one year, that prohibits the manufacture, import, export, distribution, or 

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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). The probation officer determined that Cius’s four prior convictions for 

selling cocaine, in violation of Florida Statute § 893.13, warranted applying the 

career offender enhancement, resulting in a base offense level of thirty-two. See Fla. 

Stat. § 893.13(1)(a)(1) (stating that it is a second-degree felony to “sell, manufacture, 

or deliver, or possess with intent to sell, manufacture, or deliver, a controlled 

substance” described in Florida Statute § 893.03(2)(a)); id. § 893.03(2)(a) (listing 

cocaine and any of its derivatives); id. § 775.082(3)(d) (stating that a term of 

imprisonment for a second-degree felony is a term not exceeding fifteen years).

After applying the career offender enhancement and accounting for Cius’s timely 

acceptance of responsibility, the probation officer calculated Cius’s offense level as

twenty-nine and his criminal history category as VI, which yielded a guidelines 

range of 262 to 327 months of imprisonment. See U.S.S.G. § 4B1.1(c)(3).

Cius objected to the calculations in the presentence investigation report. 

Specifically, he argued that because Florida Statute § 893.13 does not require a mens 

rea element, his prior convictions under that statute should not qualify as a predicate 

controlled substance offense under the Sentencing Guidelines. While Cius 

acknowledged that this Court’s precedent precludes his argument, he argued that the 

district court should adopt the approach taken by the Second, Fifth, and Ninth

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Circuits, which have required a mens rea element in state statutes before applying 

similar enhancements. The district court sentenced Cius below the Sentencing 

Guidelines range to 240 months of imprisonment. This timely appeal followed.

II. STANDARD OF REVIEW

“This Court reviews de novo whether a prior conviction is a ‘controlled 

substance offense’ under Section 4B1.2(b)” of the Sentencing Guidelines. United 

States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017) (quoting United States v. 

Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996)).

III. ANALYSIS

On appeal, Cius argues that the district court erred in finding that his state-law 

convictions for selling cocaine were predicate offenses for a career offender 

determination given the lack of a mens rea requirement for those convictions. Cius, 

however, acknowledges that his argument is contrary to this Court’s decision in

United States v. Smith, 775 F.3d 1262 (11th Cir. 2014). In Smith, we rejected the 

generic-offense analysis that Cius now advocates for in this case and concluded that 

a court need not determine whether the elements of a state law conviction serving as 

a predicate drug offense match “the elements of ‘generic’ definitions of ‘serious drug 

offense’ and ‘controlled substance offense’” under federal law, but instead, stated 

that the definitions of “serious drug offense” and “controlled substance offense” in 

§ 924(e)(2)(A) and U.S. Sentencing Guidelines § 4B1.2(b) should be compared to 

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the state offense. Smith, 775 F.3d at 1267. As a result, we held that a conviction 

under Florida Statute § 893.13(1) is a “serious drug offense” under § 924(e)(2)(A) 

and a “controlled substance offense” under Sentencing Guidelines § 4B1.2(b). 

Smith, 775 F.3d at 1268. The Supreme Court subsequently affirmed this Court’s

approach in Shular v. United States, 140 S. Ct. 779 (2020), determining that a 

sentencing enhancement is appropriate when the conviction involves certain 

specified conduct, even if the elements of the state law crime are not the same as 

those of the generic offense. See id. at 787.

Until the Supreme Court or this Court sitting en banc overrules Smith, it

remains binding precedent in this Circuit, and we must apply it to this case. United 

States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (describing the prior 

precedent rule). Under Smith, Florida Statute § 893.13(1) is both a “serious drug 

offense” under § 924(e)(2)(A) and a “controlled substance offense” under 

Sentencing Guidelines § 4B1.2(b). 775 F.3d at 1268. Because Smith remains 

binding precedent, Cius’s four Florida convictions for the sale of cocaine in violation 

of Fla. Stat. § 893.13 are qualifying predicate convictions and the district court did 

not err in sentencing Cius under the career offender enhancement.

Accordingly, we affirm Cius’s sentence. 

AFFIRMED. 

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