USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12010 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cr-20836-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHIRAHN JAMAL GILBERT,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 17, 2021)
Before MARTIN, BRANCH, and EDMONDSON, Circuit Judges. USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 2 of 6
PER CURIAM:
Shirahn Gilbert appeals his 180-month sentence imposed after Gilbert
pleaded guilty to possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). No reversible error has been shown; we affirm.
Before Gilbert’s sentencing, a probation officer prepared a Presentence
Investigation Report (“PSI”). The PSI determined that Gilbert had at least three
prior convictions for serious drug offenses and was, thus, subject to an enhanced
sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). As
predicate offenses for the ACCA-enhancement, the PSI identified five prior felony
convictions for violation of Fla. Stat. § 893.13(1)(a)(1): a “controlled substance”
crime.
Based on Gilbert’s total offense level of 30 and criminal history category of
VI, Gilbert’s advisory guideline range was calculated as 168 to 210 months’
imprisonment. Applying the ACCA’s minimum statutory sentence of 15 years,
Gilbert’s guidelines range became 180 to 210 months.
Gilbert objected to his designation as an armed career criminal, asserting
that his convictions under Fla. Stat. § 893.13(1)(a)(1) did not qualify as “serious
drug offenses” under the ACCA. Gilbert, however, acknowledged that his
2 USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 3 of 6
arguments were contrary to this Court’s existing precedent. The sentencing court
overruled Gilbert’s objections and imposed a sentence of 180 months.
On appeal, Gilbert reasserts his arguments challenging his designation as an
armed career criminal. We review de novo whether a prior conviction qualifies as
a serious drug offense within the meaning of the ACCA. See United States v.
Longoria, 874 F.3d 1278, 1281 (11th Cir. 2017).
Under the ACCA, a defendant is subject to a 15-year mandatory minimum
sentence if he (1) is convicted of unlawful possession of a firearm under 18 U.S.C.
§ 922(g) and (2) has at least 3 prior convictions for violent felonies or for “serious
drug offense[s].” 18 U.S.C. § 924(e)(1). Pertinent to this appeal, a “serious drug
offense” means “an offense under State law, involving manufacturing, distributing,
or possessing with intent to manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)), for
which a maximum term of imprisonment of ten years or more is prescribed by
law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Under Florida law, “a person may not sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance.” Fla.
Stat. § 893.13(1)(a).
Gilbert first argues that none of his Florida drug convictions qualify as
“serious drug offenses” because Fla. Stat. § 893.13(1)(a)(1) defines “controlled
3 USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 4 of 6
substance” more broadly than does the Controlled Substances Act. Gilbert’s
argument, however, is foreclosed by our binding precedent.
We have already decided that a conviction under Fla. Stat. § 893.13(1)(a)(1)
constitutes a “serious drug offense” within the meaning of the ACCA. See United
States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014). Gilbert acknowledges our
decision in Smith but contends that Smith has since been limited by the Supreme
Court’s decision in Shular v. United States, 140 S. Ct. 779 (2020). We disagree.
In Shular, the Supreme Court affirmed this Court’s ruling -- a ruling that
relied on Smith -- that the defendant’s prior convictions under Fla. Stat. §
893.13(1)(a) constituted “serious drug offenses” under the ACCA. 140 S. Ct. at
784. The Supreme Court concluded that the ACCA’s “serious drug offense”
definition “requires only that the state offense involve the conduct specified in the
federal statute; it does not require that the state offense match certain generic
offenses.” 140 S. Ct. at 782 (emphasis added).
Under our prior-panel-precedent rule, we are bound by a prior panel’s
decision “unless and until it is overruled or undermined to the point of abrogation
by the Supreme Court or by this court sitting en banc.” United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008). Nothing in Shular overruled or undermined
Smith. Cf. United States v. (Xavier Levar) Smith, 983 F.3d 1213, 1223 (11th Cir.
2020) (concluding -- based on both Shular and Smith -- that defendant’s
4 USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 5 of 6
convictions under Fla. Stat. § 893.13(1)(a)(1) qualified as serious drug offenses
under the ACCA). That the opinion in Smith never addressed expressly the
overbreadth argument now asserted by Gilbert is immaterial: the Smith decision
remains controlling. See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015)
(noting that “a prior panel precedent cannot be circumvented or ignored on the
basis of arguments not made to or considered by the prior panel.”).
Gilbert next argues that his two 1998 Florida drug convictions fail to satisfy
the definition of “serious drug offense” because Gilbert did not in fact face a
sentence of “ten years or more” under Florida’s then-presumptive guidelines
system. This argument is also foreclosed by our binding precedent. In McCarthy
v. United States, we decided that -- in determining whether a prior conviction met
the ACCA’s “maximum term of imprisonment” requirement -- a sentencing court
must “look to the maximum sentence for the offense category in which the
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USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12010 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cr-20836-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHIRAHN JAMAL GILBERT,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 17, 2021)
Before MARTIN, BRANCH, and EDMONDSON, Circuit Judges. USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 2 of 6
PER CURIAM:
Shirahn Gilbert appeals his 180-month sentence imposed after Gilbert
pleaded guilty to possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). No reversible error has been shown; we affirm.
Before Gilbert’s sentencing, a probation officer prepared a Presentence
Investigation Report (“PSI”). The PSI determined that Gilbert had at least three
prior convictions for serious drug offenses and was, thus, subject to an enhanced
sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). As
predicate offenses for the ACCA-enhancement, the PSI identified five prior felony
convictions for violation of Fla. Stat. § 893.13(1)(a)(1): a “controlled substance”
crime.
Based on Gilbert’s total offense level of 30 and criminal history category of
VI, Gilbert’s advisory guideline range was calculated as 168 to 210 months’
imprisonment. Applying the ACCA’s minimum statutory sentence of 15 years,
Gilbert’s guidelines range became 180 to 210 months.
Gilbert objected to his designation as an armed career criminal, asserting
that his convictions under Fla. Stat. § 893.13(1)(a)(1) did not qualify as “serious
drug offenses” under the ACCA. Gilbert, however, acknowledged that his
2 USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 3 of 6
arguments were contrary to this Court’s existing precedent. The sentencing court
overruled Gilbert’s objections and imposed a sentence of 180 months.
On appeal, Gilbert reasserts his arguments challenging his designation as an
armed career criminal. We review de novo whether a prior conviction qualifies as
a serious drug offense within the meaning of the ACCA. See United States v.
Longoria, 874 F.3d 1278, 1281 (11th Cir. 2017).
Under the ACCA, a defendant is subject to a 15-year mandatory minimum
sentence if he (1) is convicted of unlawful possession of a firearm under 18 U.S.C.
§ 922(g) and (2) has at least 3 prior convictions for violent felonies or for “serious
drug offense[s].” 18 U.S.C. § 924(e)(1). Pertinent to this appeal, a “serious drug
offense” means “an offense under State law, involving manufacturing, distributing,
or possessing with intent to manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)), for
which a maximum term of imprisonment of ten years or more is prescribed by
law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Under Florida law, “a person may not sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance.” Fla.
Stat. § 893.13(1)(a).
Gilbert first argues that none of his Florida drug convictions qualify as
“serious drug offenses” because Fla. Stat. § 893.13(1)(a)(1) defines “controlled
3 USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 4 of 6
substance” more broadly than does the Controlled Substances Act. Gilbert’s
argument, however, is foreclosed by our binding precedent.
We have already decided that a conviction under Fla. Stat. § 893.13(1)(a)(1)
constitutes a “serious drug offense” within the meaning of the ACCA. See United
States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014). Gilbert acknowledges our
decision in Smith but contends that Smith has since been limited by the Supreme
Court’s decision in Shular v. United States, 140 S. Ct. 779 (2020). We disagree.
In Shular, the Supreme Court affirmed this Court’s ruling -- a ruling that
relied on Smith -- that the defendant’s prior convictions under Fla. Stat. §
893.13(1)(a) constituted “serious drug offenses” under the ACCA. 140 S. Ct. at
784. The Supreme Court concluded that the ACCA’s “serious drug offense”
definition “requires only that the state offense involve the conduct specified in the
federal statute; it does not require that the state offense match certain generic
offenses.” 140 S. Ct. at 782 (emphasis added).
Under our prior-panel-precedent rule, we are bound by a prior panel’s
decision “unless and until it is overruled or undermined to the point of abrogation
by the Supreme Court or by this court sitting en banc.” United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008). Nothing in Shular overruled or undermined
Smith. Cf. United States v. (Xavier Levar) Smith, 983 F.3d 1213, 1223 (11th Cir.
2020) (concluding -- based on both Shular and Smith -- that defendant’s
4 USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 5 of 6
convictions under Fla. Stat. § 893.13(1)(a)(1) qualified as serious drug offenses
under the ACCA). That the opinion in Smith never addressed expressly the
overbreadth argument now asserted by Gilbert is immaterial: the Smith decision
remains controlling. See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015)
(noting that “a prior panel precedent cannot be circumvented or ignored on the
basis of arguments not made to or considered by the prior panel.”).
Gilbert next argues that his two 1998 Florida drug convictions fail to satisfy
the definition of “serious drug offense” because Gilbert did not in fact face a
sentence of “ten years or more” under Florida’s then-presumptive guidelines
system. This argument is also foreclosed by our binding precedent. In McCarthy
v. United States, we decided that -- in determining whether a prior conviction met
the ACCA’s “maximum term of imprisonment” requirement -- a sentencing court
must “look to the maximum sentence for the offense category in which the
particular predicate offense falls, not to the particular sentence received by the
defendant or the particular facts of the defendant’s crime.” 135 F.3d 754, 757
(11th Cir. 1998) (affirming an ACCA-enhanced sentence because defendant’s
convictions under Fla. Stat. § 893.13(a)(1) carried a statutory maximum penalty of
15 years and, thus, qualified as “serious drug offenses”).
Gilbert’s reliance on Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), is
mistaken. There, the Supreme Court rejected the government’s argument that --
5 USCA11 Case: 20-12010 Date Filed: 08/17/2021 Page: 6 of 6
because defendant’s conduct could have been prosecuted in federal court and
charged as a felony -- his prior state misdemeanor conviction for simple drug
possession qualified as an “aggravated felony” under the Immigration and
Nationality Act. 560 U.S. at 581-82.
Unlike in Carachuri-Rosendo, this case involves no hypothetical statute of
conviction in determining the maximum possible penalty. Gilbert’s actual statute
of conviction carries a maximum sentence that satisfies the ACCA’s “ten years or
more” requirement. Nothing in Carachuri-Rosendo overruled or undermined-to-
the-point-of-abrogation our decision in McCarthy. We are bound by that prior
panel decision.
Gilbert next contends that his two post-2002 drug convictions cannot serve
as valid predicate offenses under the ACCA because Fla. Stat. § 893.13 includes
no mens rea requirement about the illicit nature of the controlled substance. This
argument is foreclosed by our decision in Smith. See Smith, 775 F.3d at 1268
(concluding that a conviction under Fla. Stat. § 893.13 constitutes a “serious drug
offense” under the ACCA: a predicate state offense need not include “an element
of mens rea with respect to the illicit nature of the controlled substance.”).
AFFIRMED.