USA v. Tom Kelly, Jr.


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

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Case: 16-10981 Date Filed: 02/21/2017 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-10981 Non-Argument Calendar ________________________ D.C.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. ________________________ 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 Page: 2 of 3 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 2 Case: 16-10981 Date Filed: 02/21/2017 Page: 3 of 3 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. 3

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