UNITED STATES of America, Plaintiff-Appellant, v. Jesus PEREZ-PRADO, Defendant-Appellee, 598 F. App'x 739

PER CURIAM: The government appeals the 48-month sentence imposed on Jesus Perez-Prado after he pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, Mr. Perez-Prado objected to the base offense level calculation contained in his presen-tence investigation report. Specifically, Mr. Perez-Prado argued that a base offense level of 20 pursuant to § 2K2.1(a)(4)(

A) of the Sentencing Guidelines was not merited because his prior conviction for possession with intent to sell or deliver marijuana under Florida Statute § 893.13(l)(a)(2) was not a “controlled substance offense” as defined in § 4B 1.2(

b) of the Sentencing Guidelines. The district court agreed, sustaining his objection to the PSI and assigning Mr. Perez-Prado the lower base offense level of 14 pursuant to § 2K2.1 (a)(6). On appeal, the government argues that this calculation was error. After careful review of the parties’ briefs, we vacate and remand for resen-tencing. We review the district court’s application of the Sentencing Guidelines de novo. See United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir.2011).

We review de novo whether a defendant’s prior conviction qualifies as a “controlled substance offense” under the Sentencing Guidelines. See United States v. Harris, 586 F.3d 1283, 1284 (11th Cir.2009) (reviewing de novo whether a defendant’s prior conviction qualified as a crime of violence under the Sentencing Guidelines for purposes of applying U.S.S.G. § 2K2.1(a)(4)(A)). Under the Sentencing Guidelines, a defendant convicted of possession of a firearm pursuant to § 922(g)(1) ordinarily receives a base offense level of 14. See U.S.S.G. § 2K2.1(a)(6) & comment n. 3.

In relevant part, the Guidelines provide that the base offense level increases to 20 if the defendant committed the offense subsequent to sustaining one felony conviction for a “controlled substance offense.” See U.S.S.G. § 2K2.1(a)(4)(A).

For purposes of applying § 2K2.1(a)(4), a “controlled substance offense” is defined as: an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. Id. at § 4B1.2(b). See § 2K2.1, comment n. 1. In United States v. Smith, No. 13-15227, 775 F.3d 1262, 2014 WL 7250963, slip op. at 11 (11th Cir.

Dec. 22, 2014), we recently held that a conviction under § 893.13(1) of the Florida Statutes constitutes a “controlled substance offense” as defined in § 4B1.2(

b) of the Sentencing Guidelines. Accordingly, we hold, for the reasons substantially stated in our opinion in Smith, that it was error for the district court to conclude that Mr. Perez-Prado’s 2011 conviction under § 893.13(l)(a)(2) did not qualify as a “controlled substance offense” pursuant to § 4B1.2(b). We therefore vacate Mr. Perez-Prado’s sentence and remand for resentencing. Vacated and remanded.