United States v. Xavier Thomas Alexander

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 6, 2020
• Docket: 18-15233
• Status: Unpublished

Opinion

Case: 18-15233 Date Filed: 02/06/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15233 Non-Argument Calendar ________________________

D.C. Docket No. 3:17-cr-00221-MMH-JBT-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

XAVIER THOMAS ALEXANDER,

Defendant-Appellant.

________________________

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

(February 6, 2020)

Before JORDAN, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM: Case: 18-15233 Date Filed: 02/06/2020 Page: 2 of 4

Xavier Alexander appeals his 120-month sentence for conspiracy to

distribute cocaine, challenging the district court’s determination that he is a career

offender for sentencing purposes based on his two prior state felony convictions

for sale of cocaine and possession of cocaine with intent to sell. See Fla. Stat.

§ 893.13. On appeal, Alexander argues that these crimes cannot be “controlled

substance offenses” that trigger the career-offender designation under the

Sentencing Guidelines because (1) the more serious offense of Florida cocaine

trafficking is not considered a controlled substance offense, and (2) the Florida

statute defining his offenses, § 893.13(1) of the Florida Statutes, does not contain a

mens rea requirement as to the illicit nature of the substance involved. These

arguments are foreclosed by the plain language of the Sentencing Guidelines and

by binding precedent.

We review de novo the question whether a defendant qualifies as a career

offender under the Sentencing Guidelines. United States v. Pridgeon, 853 F.3d

1192, 1198 n.1 (11th Cir. 2017). To be a career offender, a defendant must have

two or more prior felony convictions that qualify as “either a crime of violence or a

controlled substance offense.” United States Sentencing Commission, Guidelines

Manual § 4B1.1(a). The Guidelines define a “controlled substance offense” as a

felony that involves “the manufacture, import, export, distribution, or dispensing of

a controlled substance (or a counterfeit substance) or the possession of a controlled

2 Case: 18-15233 Date Filed: 02/06/2020 Page: 3 of 4

substance (or a counterfeit substance) with intent to manufacture, import, export,

distribute, or dispense.” Id. § 4B1.2(b).

In interpreting these provisions, we apply the usual rules of statutory

construction, beginning with the plain language of the guideline. United States v.

Shannon, 631 F.3d 1187, 1189 (11th Cir. 2011). In Shannon, therefore, we held

that a conviction for Florida cocaine trafficking involving only the purchase of

cocaine was not a “controlled substance offense” under § 4B1.2(b) because the

purchase of cocaine “does not necessarily give rise to actual or constructive

possession” of the drug under Florida law, and the act of purchasing cocaine is not

covered by the plain language of the guideline. Id. at 1188–90. We noted that a

violation of the same Florida drug trafficking statute that involved possession with

intent to distribute cocaine—rather than purchase with intent to distribute—would

meet the definition of a controlled substance offense. Id. at 1190 & n.3. Contrary

to Alexander’s argument, whether a prior state felony is a controlled substance

offense for purposes of the career-offender guideline depends on whether the state

offense meets the definition of that term in § 4B1.2(b)—not on the seriousness of

the offense or the severity of the penalty under state law. Cf. id. at 1190–91

(Marcus, J., specially concurring).

In United States v. Smith, we determined that a violation of § 893.13(1) of

the Florida Statutes—which provides that, with exceptions not relevant here, “a

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person may not sell, manufacture, or deliver, or possess with intent to sell,

manufacture, or deliver, a controlled substance”—squarely meets the definition of

a “controlled substance offense” under the Guidelines. 775 F.3d 1262, 1267 (11th

Cir. 2014). We specifically rejected the argument that because the Florida statute

does not require proof that the defendant knew that the substance was illegal, a

violation of § 893.13(1) should not qualify as a controlled substance offense. Id.;

see also Pridgeon, 853 F.3d at 1197–98. As we explained in Smith, no “element of

mens rea with respect to the illicit nature of the controlled substance is expressed

or implied by” the Guidelines definition of “controlled substance offense.” Smith,

775 F.3d at 1267. We are bound by this precedent. See, e.g., United States v.

Harris, 941 F.3d 1048, 1057 (11th Cir. 2019).

The district court appropriately applied the career-offender enhancement

when calculating Alexander’s Guidelines sentencing range because his Florida

felony convictions for sale of cocaine and possession of cocaine with intent to sell

qualify as controlled substance offenses under the Guidelines. We therefore affirm

Alexander’s conviction and sentence.

AFFIRMED.