USA v. Tom Kelly, Jr.

Filing

Opinion issued by court as to Appellant Tom Kelly, Jr.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-10981

Date Filed: 02/21/2017

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10981
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00476-EAK-MAP-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOM KELLY, JR.,
a.k.a. Thomas Kelly, Jr.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 21, 2017)
Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-10981

Date Filed: 02/21/2017

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Tom Kelly Jr., appeals his sentence of 180 months for conspiring to possess
with intent to distribute cocaine base and a substance containing cocaine, 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), 841(b)(1)(C), 846; and possessing a firearm
and ammunition as a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e). Kelly argues
that his prior convictions in a Florida court for selling cocaine, Fla. Stat.
§ 893.13(1), do not qualify as “serious drug offenses.” See 18 U.S.C. § 924(e). We
affirm.
Kelly’s challenge to the enhancement of his sentence is foreclosed by United
States v. Smith, 775 F.3d 1262 (11th Cir. 2014). Like Kelly, the defendant in Smith
argued that his prior convictions for drug offenses did not qualify as predicate
offenses because under Section 893.13 of the Florida Statutes did not require proof
as an element of the crime that the defendant knew the illegal nature of the
controlled substance and because a mens rea element had to be implied based on
the presumption in favor of mental culpability and the rule of lenity. Id. at 1266–
67. Those arguments “fail[ed],” we concluded, because “[n]o element of mens rea
with respect to the illicit nature of the controlled substance is expressed or implied
by [the] definition” of “serious drug offense.” Id. at 1267. “Serious drug offense”
is defined unambiguously as “an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or distribute, a controlled
substance . . . for which a maximum term of imprisonment of ten years or more is
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Case: 16-10981

Date Filed: 02/21/2017

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prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). “Section 893.13(1) of the Florida
Statutes is . . . a ‘serious drug offense,’” Smith, 775 F.3d at 1268, and Kelly’s
multiple prior convictions under that statute qualify as predicate offenses under the
Armed Career Offender Act. See 18 U.S.C. § 924(e)(1). Under our longstanding
prior panel precedent rule, Smith “is binding on all subsequent panels unless and
until it is overruled or undermined to the point of abrogation by the Supreme Court
or by this court sitting en banc.” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015)
(quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)). Smith did
not address the argument Kelly makes that his prior convictions do not count as
serious drug offenses because they do not require proof of remuneration, but “a
prior panel precedent cannot be circumvented or ignored on the basis of arguments
not made to or considered by the prior panel,” id. (quoting Tippitt v. Reliance
Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006)). The district court
correctly sentenced Kelly as an armed career offender.
We AFFIRM Kelly’s sentence.

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