United States v. Anthony Swaby

697 F. App'x 619

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 29, 2017
• Docket: 16-17780 Non-Argument Calendar
• Status: Unpublished

Opinion

PER CURIAM:

Anthony Swaby appeals his 120-month, below-the-guideline-range sentence, after pleading guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). On appeal, Swaby argues that he was incorrectly classified and sentenced as a career offender. Swaby argues that his previous conviction under Fla. Stat. § 893.13(1), does not qualify as a controlled substance offense under U.S.S.G. § 4B1.2(b) because the statute does not contain a mens rea element. Although he acknowledges that in United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014), we held that § 893.13 qualifies as a controlled substance offense, he argues that Smith conflicts with several Supreme Court decisions.

We review constitutional sentencing challenges de novo, which includes the question of whether a defendant’s prior convictions qualify as controlled substance offenses for purposes of U.S.S.G. § 4B1.2(b). See Smith, 775 F.3d at 1265. And “[w]e are bound by [our] prior panel decisions unless and until we overrule them while sitting en banc, or they are overruled by the Supreme Court.” United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011). In other words, “[w]e are authorized to depart from a prior panel decision based upon an intervening Supreme Court decision only if that decision actually overruled or conflicted with it.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (internal quotation marks omitted).

Swaby relies on Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), Elonis v. United States, 575 U.S. —, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), and McFadden v. United States, 576 U.S. —, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015) for the proposition that Smith has been overruled. However we are not convinced that those cases overrule or conflict with Smith. Therefore, because no Supreme Court or en banc decision has overruled the holding from Smith, the pri- or panel precedent rule bounds us to that holding. See Marte, 356 F.3d at 1344. We affirm Swaby’s sentence.

AFFIRMED.