United States v. Wilbur Lee Wallace, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 12, 2023
• Docket: 21-12946
• Status: Unpublished

Opinion

USCA11 Case: 21-12946 Document: 56-1 Date Filed: 05/12/2023 Page: 1 of 5

[DO NOT PUBLISH]

In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-12946 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILBUR LEE WALLACE, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:19-cr-00515-SDM-JSS-1 USCA11 Case: 21-12946 Document: 56-1 Date Filed: 05/12/2023 Page: 2 of 5

2 Opinion of the Court 21-12946

Before NEWSOM, GRANT and DUBINA, Circuit Judges. PER CURIAM: Appellant Wilbur Wallace, Jr., appeals the district court’s imposition of a mandatory minimum sentence of 180 months’ im- prisonment after Wallace pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the district court designated him as an armed career criminal under the Armed Career Criminal Act (“ACCA”). Wallace relies on our previous decision in United States v. Jackson, 36 F.4th 1294 (11th Cir. 2022) (“Jackson I”) vacated by United States v. Jackson, 55 F.4th 846 (11th Cir. 2002) (Jackson II), to argue that his Florida co- caine-related offenses do not qualify as “serious drug offenses” un- der the ACCA. Having read the parties’ briefs and reviewed the record, we affirm Wallace’s sentence. I. We “review de novo the legal question whether a prior state conviction qualifies as a ‘serious drug offense’ under ACCA.” United States v. Jackson, 55 F.4th 846, 849-50 (11th Cir. 2022) (pet. for cert. filed, ___ U.S. ___ (Jan. 26, 2023) (No. 22-6640). Under the prior panel precedent rule, “we are bound to follow a prior binding precedent unless and until it is overruled by this court en banc or by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quotation marks omitted). The prior panel precedent rule applies even if the prior precedent is arguably USCA11 Case: 21-12946 Document: 56-1 Date Filed: 05/12/2023 Page: 3 of 5

21-12946 Opinion of the Court 3

flawed. United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017). II. The ACCA imposes a 15-year mandatory minimum sen- tence for a defendant convicted under 18 U.S.G. § 922(g) who has 3 previous convictions for, in relevant part, “serious drug of- fense[s]” that were “committed on occasions different from one an- other.” 18 U.S.C. § 924(e)(1); United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009). The definition of “serious drug offense” in- cludes a crime under state law “involving manufacturing, distrib- uting, or possession with intent to manufacture or distribute, a con- trolled substance” that is punishable by a maximum term of ten or more years’ imprisonment. 18 U.S.C. § 924(e)(2)(A)(ii). In Jackson I, we held that a criminal defendant’s 1998 and 2004 cocaine-related convictions under Fla. Stat. § 893.13 did not qualify as serious drug offenses under the ACCA because, at the times of the defendant’s convictions, § 893.13’s controlled-sub- stance element was broader for cocaine-related offenses than the ACCA’s definition of a serious drug offense. 36 F.4th at 1304, 1306. Because the defendant’s § 893.13 offenses did not qualify as serious drug offenses under the ACCA, we held that the defendant was im- properly sentenced as a career offender. Id. at 1306. However, we issued a superseding opinion in Jackson II. 55 F.4th at 849. In Jackson II, we explained that, until 2017, § 893.13 prohibited the sale, manufacture, delivery, or possession with USCA11 Case: 21-12946 Document: 56-1 Date Filed: 05/12/2023 Page: 4 of 5

4 Opinion of the Court 21-12946

intent to sell, manufacture, or deliver “a controlled substance,” in- cluding ioflupane. Id. at 851 n.3; see Fla. Stat. §§ 893.13(1), 893.03(2)(a)(4) (1998), (2017). Similarly, in 1998, “[t]he federal ver- sion of Schedule II also encompassed ioflupane” until 2015. Jack- son, 55 F.4th at 851; see 80 Fed. Reg. at 54716 (Sept. 11, 2015); 21 C.F.R. § 1308.12(b)(4)(ii) (2017). In Jackson II, we held that the “ACCA’s definition of a state ‘serious drug offense’ incorporates the version of the federal controlled-substances schedules in effect when the defendant was convicted of the prior state drug offense,” not the version in effect when the defendant committed the instant offense. Jackson, 55 F.4th at 854. Because the ACCA included io- flupane until 2015, § 893.13 was not categorically broader than the ACCA’s definition of a serious drug offense, so the defendant’s 1998 and 2004 § 893.13(1) cocaine convictions qualified as serious drug offenses under § 924(e)(1). Id. at 861-62. Our holding in Jackson II forecloses Wallace’s argument that his § 893.13 offenses do not qualify as serious drug offenses under the ACCA. Although both federal and state law exempted io- flupane from the relevant prohibitions against possession of a “con- trolled substance” when Wallace committed the instant offense, io- flupane possession did qualify under both federal and state law when he committed his cocaine-related offenses. See Fla. Stat. § 893.13(1) (1998); 80 Fed. Reg. at 54716; 21 C.F.R. § 1308.12(b)(4)(ii) (2017); Jackson II, 55 F.4th at 850 n.3, 851. Because a state “serious drug offense” incorporates the federal controlled-substances sched- ules in effect when Wallace was convicted of his prior drug USCA11 Case: 21-12946 Document: 56-1 Date Filed: 05/12/2023 Page: 5 of 5

21-12946 Opinion of the Court 5

offenses, and because § 893.13(1) is not categorically broader than the ACCA’s definition of a serious drug offense, Jackson II fore- closes Wallace’s argument otherwise. Accordingly, we affirm Wal- lace’s mandatory minimum sentence of 180 months. AFFIRMED.