United States v. Anthony Jerome Billings, Jr.

Case: 19-13753 Date Filed: 10/02/2020 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13753

Non-Argument Calendar

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D.C. Docket No. 9:19-cr-80079-DMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY JEROME BILLINGS, JR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 2, 2020)

Before GRANT, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM:

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Anthony Billings Jr. appeals his 144-month sentence for one count of

possession with intent to distribute a controlled substance, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(iii), and his concurrent 120-month sentence on one count of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Specifically, Billings appeals the district court’s determination that he was a career

offender under U.S.S.G. § 4B1.1 based on his prior convictions, and the

consequent sentence enhancement.

I.

On appeal, Billings argues that his prior conviction for sale of cocaine does

not constitute a “controlled substance offense” because the relevant Florida statute

lacks a mens rea requirement regarding the illicit nature of the controlled

substance. Billings concedes that Eleventh Circuit law is contrary to his own

position but argues that the law is wrongly decided.

We review de novo whether a prior conviction is a “controlled substance

offense” under U.S.S.G § 4B1.2(b). United States v. Lange, 862 F.3d 1290, 1293

(11th Cir. 2017).

A defendant is a career offender if: (1) the defendant is at least 18 years old

at the time of the instant offense of conviction; (2) the instant offense of conviction

is either a “crime of violence” or a “controlled substance offense;” and (3) the

defendant has at least two prior convictions of either a “crime of violence” or a

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“controlled substance offense.” U.S.S.G. § 4B1.1(a). A “controlled substance

offense” is an offense under federal or state law, punishable by more than one year

of imprisonment, that prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance, or possession of a controlled substance, with

intent to manufacture, import, export, distribute, or dispense. U.S.S.G. § 4B1.2(b).

In United States v. Smith, we held that a conviction under Fla. Stat. § 893.13

constitutes a “controlled substance offense,” under U.S.S.G. § 4B1.2(b). 775 F.3d

1262, 1268 (11th Cir. 2014). Furthermore, the definition of “controlled substance

offense” under U.S.S.G. § 4B1.2(b) does not require “that a predicate state offense

includes an element of mens rea with respect to the illicit nature of the controlled

substance.” Id.; see also United States v. Pridgeon, 853 F.3d 1192, 1200 (11th Cir.

2017) (rejecting the argument that Smith was wrongly decided and affirming

Smith’s holding that convictions under Fla. Stat. § 893.13 qualify as “controlled

substance offenses” under the Sentencing Guidelines).

We are bound by prior panel decisions unless or until we overrule them

while sitting en banc or they are overruled by the Supreme Court. United States v.

Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); see also United States v. Bishop,

940 F.3d 1242, 1253-54 (11th Cir. 2019) cert. denied, 140 S. Ct. 1274 (2020)

(holding that we are bound by Smith until it is properly overruled).

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Here, Billings’s argument that his prior conviction for sale of cocaine under

Fla. Stat. § 893.13 was not a “controlled substance offense” under U.S.S.G.

§ 4B1.2(b) because the state law lacked a mens rea element is foreclosed by our

decision in Smith. See Pridgeon, 853 F.3d at 1200. We are bound by our holding

in Smith under the prior precedent rule. See Bishop, 940 F.3d at 1253-54. Thus,

the district court did not err in determining that Billings’s prior conviction under

Fla. Stat. § 893.13 was a “controlled substance offense.” Accordingly, we affirm

the district court’s determination.

II.

Billings argues that the district court improperly determined he was a career

offender based in part on its finding that his prior conviction for aggravated assault

under Fla. Stat. § 784.021 was a “crime of violence” because that statute did not

require an intentional mens rea and allowed conviction under a reckless disregard

standard. Billings again concedes that his argument is foreclosed by Eleventh

Circuit precedent, but he contends that United States v. Golden, 854 F.3d 1256

(11th Cir. 2017), and Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir.

2013), were wrongly decided because those decisions failed to use the

determination and construction of the elements of the state offense by Florida

courts when they applied a categorical approach.

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We review de novo whether a defendant’s prior conviction qualifies as a

“crime of violence” under U.S.S.G § 4B1.2(a). See United States v. Rosales-

Bruno, 676 F.3d 1017, 1020 (11th Cir. 2012). However, when a defendant fails to

object to an error before the district court, we review the argument for plain error.

United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002). To establish plain error,

the defendant must show an error: (1) that is not intentionally relinquished or

abandoned, (2) that is plain, and (3) that affected substantial rights. United States

v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019) (citing Molina-Martinez v. United

States, 136 S. Ct. 1338, 1343 (2016)). When these conditions are met, we may

only exercise our discretion to notice the error “if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (citing Molina-

Martinez, 136 S. Ct. at 1343).

We will not conduct plain error review when a party invites error by the

district court. See United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006)

(citing United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It is a cardinal

rule of appellate review that a party may not challenge as error a ruling or other

trial proceeding invited by that party.”). “The doctrine of invited error is

implicated when a party induces or invites the district court into making an error.”

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United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998). “Where invited error

exists, it precludes a court from invoking the plain error rule and reversing.”

United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005).

The Sentencing Guidelines define a “crime of violence” as:

any offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated

assault, a forcible sex offense, robbery, arson, extortion, or the use or

unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or

explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a).

Under Fla. Stat. § 784.021, “[a]n ‘aggravated assault’ is an assault: (a) With

a deadly weapon without intent to kill; or (b) With an intent to commit a felony.”

Fla. Stat. § 784.021. An assault is defined as “an intentional, unlawful threat by

word or act to do violence to the person of another, coupled with an apparent

ability to do so, and doing some act which creates a well-founded fear in such

other person that such violence is imminent.” Fla. Stat. § 784.011.

In Turner, we held that Fla. Stat. § 784.021 qualifies as a “violent felony”

under the ACCA’s elements clause. Turner, 709 F.3d at 1337-38 (concluding that

Florida aggravated assault “will always include as an element the . . . threatened

use of physical force against the person of another . . .”). Furthermore, an assault

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carried out with a deadly weapon, such as a firearm, is “included in ‘the generic

crime of “aggravated assault” so as to qualify as a “crime of violence”’ or a violent

felony for purposes of sentencing.” Id. at 1338 n.6 (quoting United States v.

Palomino Garcia, 606 F.3d 1317, 1331-32 (11th Cir. 2010)). Even though Turner

addressed the elements clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i), that

clause is identical to the elements clause of U.S.S.G. § 4B1.2(a)(1); thus, Turner is

binding as to Fla. Stat. § 784.021 constituting a “crime of violence” under U.S.S.G.

§ 4B1.2(a). United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017); see

also United States v. Deshazior, 882 F.3d 1352, 1355 (11th Cir. 2018), cert.

denied, 139 S. Ct. 1255 (2019) (stating that Turner forecloses any argument that

Fla. Stat. § 784.021 is not a violent felony). The prior panel precedent rule dictates

that, even if Turner is flawed, we, as a later panel, do not have the authority to

disregard it. See Golden, 854 F.3d at 1257.

We do not reach the merits of Billings’ argument because he invited or

induced the district court’s determination that he now claims was error. In his plea

agreement, Billings agreed that his prior conviction for aggravated assault with a

firearm constituted a predicate offense and helped qualify him as a career offender

under U.S.S.G. § 4B1.1. During the plea colloquy, Billings affirmed that his prior

conviction for aggravated assault helped qualify him as a career offender. Finally,

at his sentencing hearing, Billings explicitly stated he was not raising an objection

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concerning his prior aggravated assault conviction constituting a career offender

predicate. Thus, Billings is precluded from claiming on appeal that the district

court erred in determining that his prior conviction for aggravated assault qualified

as a “crime of violence.” See Silvestri, 409 F.3d at 1327. 1

AFFIRMED.

1

Although Billings clearly invited an error, his challenge would have been foreclosed in

this circuit in any event by our Turner decision.

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