United States v. Wilfredo Roy Madrigal

Case: 18-13734 Date Filed: 05/14/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13734 Non-Argument Calendar ________________________

D.C. Docket No. 9:18-cr-80064-RLR-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILFREDO ROY MADRIGAL, a.k.a. WOLFMAN, a.k.a. FREDO,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 14, 2019) Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges. PER CURIAM:

Case: 18-13734 Date Filed: 05/14/2019 Page: 2 of 3

Wilfredo Madrigal appeals his 120-month sentence for distributing heroin. Madrigal contends the district court improperly classified him as a career offender based on two prior convictions for drug-related offenses under Fla. Stat. § 893.13. Madrigal asserts the convictions should not qualify as predicate offenses under U.S.S.G. § 4B1.2(b) because the state law lacked a mens rea element.

We review de novo the district court’s decision to classify a defendant as a career offender under § 4B1.1. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006). “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).

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 for either a crime of violence or a 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).

Case: 18-13734 Date Filed: 05/14/2019 Page: 3 of 3

In United States v. Smith, we held that a prior conviction under Fla. Stat. § 893.13 was a “controlled substance offense” under § 4B1.2(b) and that the definition of “controlled substance offense” under § 4B1.2(b) does not require “that a predicate state offense include[] an element of mens rea with respect to the illicit nature of the controlled substance.” 775 F.3d 1262, 1268 (11th Cir. 2014); 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 § 893.13 qualify as “controlled substance offenses” under the Sentencing Guidelines), cert. denied, 138 S. Ct. 215 (2017). In Smith, we stated there was no need to look at the generic definition of “controlled substance offense” by comparing Fla. Stat. § 893.13 to its federal analogue because the term is defined in the Sentencing Guidelines. 775 F.3d at 1267.

Madrigal’s argument his prior convictions under Fla. Stat. § 893.13 were not “controlled substance offenses” under the Guidelines because the state law lacked a mens rea element is foreclosed by our decision in Smith. Accordingly, the district court did not err in applying an enhanced base offense level based on its determination that his prior Fla. Stat. § 893.13 convictions were controlled substance offenses, and we affirm.

AFFIRMED.