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United States v. Anthony Swaby
697 F. App'x 619
| 11th Cir. | 2017
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Case Information

*1 Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

Anthony Swaby appeals his 120-month, below-the-guideline-range sentence, after pleading guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). On appeal, Swaby argues that he was incorrectly classified and sentenced as a career offender. Swaby argues that his previous conviction under Fla. Stat. § 893.13(1), does not qualify as a controlled substance offense under U.S.S.G. § 4B1.2(b) because the statute does not contain a mens rea element. Although he acknowledges that in United States v. Smith , 775 F.3d 1262, 1268 (11th Cir. 2014), we held that § 893.13 qualifies as a controlled substance offense, he argues that conflicts with several Supreme Court decisions.

We review constitutional sentencing challenges de novo, which includes the question of whether a defendant’s prior convictions qualify as controlled substance offenses for purposes of U.S.S.G. § 4B1.2(b). See Smith , 775 F.3d at 1265. And “[w]e are bound by [our] prior panel decisions unless and 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). In other words, “[w]e are authorized to depart from a prior panel decision based upon an intervening Supreme Court decision only if that decision actually overruled or conflicted with it.” United States v. Marte , 356 F.3d 1336, 1344 (11th Cir. 2004) (internal quotation marks omitted).

Swaby relies on Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), Elonis v. United States , 575 U.S. ___, 135 S. Ct. 2001 (2015), and McFadden v. United States , 576 U.S. ___, 135 S. Ct. 2298 (2015) for the proposition that has been overruled. However we are not convinced that those cases overrule or conflict with Smith . Therefore, because no Supreme Court or en banc decision has overruled the holding from Smith , the prior panel precedent rule bounds us to that holding. See Marte , 356 F.3d at 1344. We affirm Swaby’s sentence.

AFFIRMED.

Case Details

Case Name: United States v. Anthony Swaby
Court Name: Court of Appeals for the Eleventh Circuit
Date Published: Aug 29, 2017
Citation: 697 F. App'x 619
Docket Number: 16-17780 Non-Argument Calendar
Court Abbreviation: 11th Cir.
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