United States v. Gregory Brown

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 17, 2020
• Docket: 19-12576
• Status: Unpublished

Opinion

USCA11 Case: 19-12576 Date Filed: 12/17/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12576 Non-Argument Calendar ________________________

D.C. Docket No. 8:16-cr-00428-VMC-TBM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY BROWN,

Defendant-Appellant.

________________________

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

(December 17, 2020)

Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges. USCA11 Case: 19-12576 Date Filed: 12/17/2020 Page: 2 of 4

PER CURIAM:

Gregory Brown appeals his 90-month sentence -- imposed upon

resentencing -- after Brown pleaded guilty to being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). No reversible error has been shown;

we affirm.

At Brown’s original sentencing, the sentencing court concluded Brown was

subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”).

This determination was based on Brown’s three Florida felony convictions for

delivery of cocaine within 1000 feet of a school, in violation of Fla. Stat. § 893.13.

On direct appeal, we affirmed Brown’s conviction, vacated his sentence, and

remanded for resentencing without the ACCA enhancement. See United States v.

Brown, 750 F. App’x 892, 896 (11th Cir. 2018) (unpublished) (concluding that the

government failed to prove that Brown’s three felony drug offenses were

committed on different occasions).

On remand, the probation officer prepared a revised Presentence

Investigation Report (“PSI”) for resentencing. In the light of Brown’s prior felony

convictions for violations of Fla. Stat. § 893.13, the PSI concluded that Brown had

at least two convictions for a “controlled substance offense.” The PSI thus

2 USCA11 Case: 19-12576 Date Filed: 12/17/2020 Page: 3 of 4

assigned a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2). The PSI then

applied a 3-level reduction for acceptance of responsibility, resulting in a total

offense level of 21. Based on this total offense level and Brown’s criminal history

category of VI, Brown’s guidelines range was calculated as 77-96 months’

imprisonment. Brown made no objections to the revised PSI. The sentencing

court imposed a sentence of 90 months’ imprisonment.

On appeal, Brown now challenges the sentencing court’s calculation of his

guidelines range. Brown says the guidelines definition of “controlled substance

offense” should be read to include a mens rea requirement. Because Brown’s

convictions under Fla. Stat. § 893.13 include no mens rea requirement for the illicit

nature of the controlled substance, Brown says those offenses cannot qualify as

“controlled substance offenses” under the guidelines.

Because Brown raises this argument for the first time on appeal, we consider

it only for plain error. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th

Cir. 2014).

As Brown concedes, his sole argument on appeal is foreclosed by our

binding precedent. See United States v. Smith, 775 F.3d 1262, 1266-68 (11th Cir.

2014) (concluding that a conviction under Fla. Stat. § 893.13 constitutes a

“controlled substance offense” within the meaning of the guidelines: a predicate

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state offense need not include “an element of mens rea with respect to the illicit

nature of the controlled substance.”); see also United States v. Pridgeon, 853 F.3d

1192 (11th Cir. 2017) (upholding the decision in Smith). Under our prior panel

precedent rule, we are bound by our decision in Smith. See United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“a prior panel’s 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 by this court sitting en banc.”).

Because Brown has demonstrated no error -- plain or otherwise -- we affirm.

AFFIRMED.