UNITED STATES v. ANDERSON (2019)

Antwoyn Anderson appeals his 235-month Armed Career Criminal Act (“ACCA”) enhanced sentence after he pled guilty to one count of possession of a firearm by a convicted felon and one count of possession of a controlled substance. First, he argues that the district court erred in using his prior convictions for possession of cocaine with intent to sell, in violation of Fla. Stat. § 893.13, as a predicate serious drug offense under the ACCA’s elements clause. Second, he argues that the district court erred in using his prior conviction for Florida aggravated assault as a predicate violent felony under the ACCA’s elements clause.

I.

We review de novo whether a conviction qualifies as a serious drug offense under the ACCA. United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016). We are bound by a prior panel opinion, even if it was wrongly decided, until the opinion’s holding is overruled by the Supreme Court or this Court sitting en banc. See United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017). Further, we do not assign precedential significance to grants of certiorari. Gissendaner v. Ga. Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015) (“Until the Supreme Court issues a decision that actually changes the law, we are duty-bound to apply this Court’s precedent․”).

We have held that the Florida crime of possession of a controlled substance with the intent to sell, in violation of Fla. Stat § 893.13, is categorically a serious drug offense under the ACCA. United States v. Smith, 775 F.3d 1262, 1267-68 (11th Cir. 2014). Anderson’s argument that his prior convictions for possession of cocaine with intent to sell under Fla. Stat. § 893.13 were not serious drug offenses is thus foreclosed by Smith. Accordingly, the district court did not err in using Fla. Stat. § 893.13 to determine his status as an armed career criminal.

II

We review de novo the district court’s determination that a defendant’s prior convictions constituted violent felonies under the ACCA. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). We have held that the Florida crime of aggravated assault is categorically a violent felony under the ACCA. Turner v. Warden Coleman FCI, 709 F.3d 1328, 1337-39 (11th Cir. 2013) abrogated on other grounds by United States v. Hill, 799 F.3d 1318, 1321 n.1 (11th Cir. 2015). Further, we have since reaffirmed our holding as to Florida aggravated assault, concluding in Golden that Florida aggravated assault constitutes a crime of violence under the identical elements clause in the career offender sentencing guidelines. Golden, 854 F.3d at 1256-57.

Anderson’s argument that his prior conviction for Florida aggravated assault was not a violent felony is foreclosed by Turner. Accordingly, the district court did not err in using his prior aggravated assault conviction to determine his status as an armed career criminal.

AFFIRMED.

PER CURIAM: