USA v. Marvas Aurelien

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12995
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVAS AURELIEN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00081-GKS-DCI-1
____________________
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2 Opinion of the Court 21-12995
Before L UCK , B RASHER, and ANDERSON, Circuit Judges.
PER C URIAM :
Marvas Aurelien appeals his sixty-three-month sentence for
possessing a firearm as a convicted felon. He argues that the dis-
trict court erred in applying a higher base offense level for previ-
ously having been convicted of a controlled substance offense. Au-
relien contends that his 2017 Florida conviction for possessing ma-
rijuana with the intent to sell was not a controlled substance of-
fense. We disagree and affirm.
In March 2019, local law enforcement officers in the Orlando
area arrested Aurelien on an active warrant for aggravated assault
with a firearm. During the arrest, officers found a loaded semi-au-
tomatic handgun in Aurelien’s front pocket. The handgun had
been stolen two years earlier.
Aurelien had prior felony convictions for grand theft (five of
them), possession of alprazolam, possession of marijuana, and pos-
session of marijuana with the intent to sell. So the grand jury in-
dicted him for possessing the handgun and ammunition as a con-
victed felon, in violation of 18 U.S.C. section 922(g)(1). Aurelian
pleaded guilty without a plea agreement.
The probation office prepared a presentence investigation
report. The report used a base offense level of twenty because Au-
relien possessed the firearm and ammunition “subsequent to sus-
taining one felony conviction of either a crime of violence or a
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21-12995 Opinion of the Court 3
controlled substance office.” Aurelien, the report continued, had a
2017 Florida conviction for possessing marijuana with the intent to
sell, which was a controlled substance offense. The report then
added two levels because the handgun was stolen and subtracted
three levels because Aurelien clearly demonstrated and timely ac-
cepted responsibility. With a total offense level of nineteen, and a
criminal history category of VI, the report calculated Aurelien’s
guideline range as sixty-three to seventy-eight months’ imprison-
ment.
Aurelien objected to the part of the presentence investiga-
tion report setting his base offense level as twenty. He should not
have been assigned the higher base offense level because his 2017
Florida conviction for possessing marijuana with the intent to sell
was not a “controlled substance offense” under the guidelines.
Controlled substance offenses under the guidelines are “limited to
federally controlled substances under the Controlled Substances
Act” and his “state conviction for a hemp-based offense was not”
for a federally controlled substance.
At his sentencing hearing, Aurelien explained that, in 2017,
Florida defined marijuana broadly to include hemp. So, under the
categorial approach, the court had to presume that his conviction
was for the “least culpable conduct”—the “possession of hemp,
with intent to sell or deliver.” But, since 2017, Congress and Flor-
ida have changed their controlled substance statutes to “exclude
hemp.” “Thus,” Aurelien argued, “hemp is not a controlled sub-
stance today in either federal or Florida courts and a hemp-based
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4 Opinion of the Court 21-12995
offense is not a controlled substance offense under the guide-
lines . . . .” “[A] controlled substance offense in the guidelines,” Au-
relien concluded, “is defined by reference to the [f]ederal Con-
trolled Substance Act schedule . . . .”
The district court overruled Aurelien’s objection based on
United States v. Smith, 775 F.3d 1262 (11th Cir. 2014) and
United
States v. Pridgeon, 853 F.3d 1192 (11th Cir. 2017). After consider-
ing the 18 U.S.C. section 3553(a) factors, the district court sen-
tenced Aurelien to the low end of his guideline range—sixty-three
months’ imprisonment. Aurelien timely appealed.
Typically, a defendant (like Aurelien) convicted of pos-
sessing a handgun and ammunition as a felon would be assigned a
base offense level of fourteen.
See U.S.S.G. § 2K2.1(a)(6)(A) (ex-
plaining that the base offense level is fourteen “if the defendant . . .
was a prohibited person at the time the defendant committed the
instant offense”). But, if the defendant possessed the handgun and
ammunition “subsequent to sustaining one felony conviction of ei-
ther a crime of violence or a controlled substance offense,” the base
offense level pops up to twenty.
Id. § 2K2.1(a)(4)(A). The district
court applied the higher base offense level to Aurelien because, it
concluded, his 2017 Florida conviction for possessing marijuana
with the intent to sell was a controlled substance offense.
Aurelien argues that the district court erred in applying the
higher base offense level. His 2017 Florida conviction, he contends,
was not a “controlled substance offense” under the guidelines, so
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21-12995 Opinion of the Court 5
he should have had a lower base offense level, a lower guideline
range, and lower sentence.1
But, twice, we’ve held that Florida convictions for pos-
sessing marijuana with the intent to sell are controlled substance
offenses under the guidelines. In
Smith, as here, the defendants
had prior Florida convictions for “possession of marijuana with in-
tent to sell within 1,000 feet of a school or church” and “possession
of marijuana with the intent to sell.” 775 F.3d at 1264–65. They
argued, as Aurelien does, “that their prior convictions for Florida
drug crimes d[id] not qualify as . . . ‘controlled substance of-
fense[s].’”
Id. at 1265 (second alteration in original) (citation omit-
ted). We held that the Florida drug crime statute—the same one
Aurelien violated—was “a ‘controlled substance offense’” under
the guidelines.
Id. at 1268 (quotation omitted).
The defendant in
Pridgeon also made the same argument.
There, as in
Smith, the defendant had a prior Florida conviction for
“possession of a controlled substance with intent to sell.” 853 F.3d
at 1196. The defendant “argued,” as the
Smith defendants did,
“that his 2006 drug convictions did not qualify as predicate ‘con-
trolled substance offenses.’”
Id.;
see also id. (the defendant “reiter-
ated his objections . . . arguing that his Florida drug convictions do
not qualify as predicate offenses”). Following
Smith, we
1 We review de novo whether a previous conviction qualifies as a controlled
substance offense under the sentencing guidelines.
United States v. Bates, 960
F.3d 1278, 1293 (11th Cir. 2020).
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6 Opinion of the Court 21-12995
“conclude[d] that” the defendant’s Florida drug convictions
“qualif[ied] as predicate ‘controlled substance offenses’” under the
guidelines.
Id. at 1198.
Normally, that would be the end of it.
Smith and
Pridgeon
hold that Aurelien’s prior conviction for possessing marijuana with
the intent to sell is a controlled substance offense under the guide-
lines. So, the district court didn’t err in applying the higher base
offense level.
But, Aurelien argues, that’s not the end of it because the law
has changed since
Smith and
Pridgeon. Congress has amended the
Controlled Substances Act to exclude hemp. And, under the cate-
gorical approach, we must assume that Aurelien’s prior conviction
was for the least culpable conduct—that he possessed hemp with
the intent to sell—because the Florida drug statute included hemp
in 2017. Comparing Aurelien’s 2017 hemp conviction to the cur-
rent version of the federal Controlled Substances Act, Aurelien’s
conviction is overbroad and, thus, is not categorically a controlled
substance offense under the guideline.
Compare 21 U.S.C.
§§ 802(16)(B)(i)–(ii) (excluding hemp and “mature stalks” from the
federal definition of marijuana),
with Fla. Stat. §§ 891.13(1)(a)2,
891.02(3) (2017) (criminalizing possession with intent to distribute
any part of the marijuana plant).
There’s a problem, though, with Aurelien’s argument: it as-
sumes that we determine whether a prior state drug conviction is
a “controlled substance offense” under the guidelines by compar-
ing it to the federal analogue. But we rejected that argument in
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21-12995 Opinion of the Court 7
Smith and
Pridgeon. “In
Smith,” we explained in
Pridgeon, “we
properly declined to look to statutory federal analogues in consid-
ering [Florida’s drug statute] because we found that the sentencing
guideline did not define ‘controlled substance offense’ by reference
to those analogues and the sentencing guidelines definition was un-
ambiguous.”
Pridgeon, 853 F.3d at 1198 (citing
Smith, 775 F.3d at
1268).
Nothing has changed since we decided
Smith and
Pridgeon
that would undermine our precedent to the point of abrogation.
Because nothing has changed, we are bound by those decisions.
And we are bound by those decisions to affirm the district court’s
application of the higher base offense level and the sixty-three-
month prison sentence.
AFFIRMED.2
2 The government’s motion to supplement the record is DENIED.
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