USA v. Maxsony Coissy

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14797
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAXSONY COISSY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cr-60365-AHS-1
____________________
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2 Opinion of the Court 20-14797
Before J ORDAN , N EWSOM, and G RANT, Circuit Judges.
PER CURIAM:
On February 12, 2020, Maxsony Coissy pleaded guilty to
distributing fentanyl and heroin and to knowingly possessing a
firearm as a convicted felon. Coissy appeals his sentence, arguing
that the district court improperly calculated his base offense level
and improperly sentenced him as a career offender under the
Sentencing Guidelines. We disagree and affirm.
After Coissy pleaded guilty to his crimes, the district court
determined that he had committed at least two prior offenses that
qualified as either a “crime of violence” or a “controlled substance
offense” as defined by the Guidelines. Specifically, in 2003, Coissy
was convicted for aggravated assault under Florida law—a “crime
of violence.” And in 2018, Coissy was convicted under Florida law
of possessing heroin with intent to sell—a “controlled substance
offense.” The categorization of these two offenses as predicate
offenses affected both Coissy’s base offense level under
§ 2K2.1(a)(1) and his career offender enhancement under § 4B1.1.
On appeal, Coissy argues that neither of these is a predicate
offense. First, he argues that a Florida conviction for aggravated
assault is not a crime of violence under the Guidelines because it
may be committed with a mens rea of recklessness. And second, he
argues that his prior drug conviction is not a “controlled substance
offense” under the Guidelines because the Florida offense does not
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20-14797 Opinion of the Court 3
require knowledge of the illicit nature of the controlled substance.
Both of these arguments are foreclosed by our precedent.
In his supplemental briefing, Coissy acknowledges that this
Court’s recent decision in Somers v. United States completely
resolves the first issue on appeal. 66 F.4th 890 (11th Cir. 2023). He
concedes that his Florida aggravated assault conviction qualifies as
a crime of violence for the purposes of the Guidelines. We agree.
In Somers, a panel of this Court determined that, because
aggravated assault under Florida law requires a mens rea of at least
knowing conduct, it qualifies as a “violent felony” under the Armed
Career Criminal Act’s elements clause. Id. at 894. The reasoning
in Somers applies equally to the elements clause in the Guidelines,
given its “virtually identical” definition of “violent felony.” See
United States v. Ochoa, 941 F.3d 1074, 1107 (11th Cir. 2019). We
have no trouble concluding that Coissy’s conviction for aggravated
assault under Florida law is a predicate violent offense for the
purposes of the Guidelines.
Coissy’s second argument is similarly foreclosed by our
precedent—a fact he also acknowledges. In United States v. Smith,
we determined that the Guidelines’ definition of “controlled
substance offense” 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).
Accordingly, Smith concluded that Fla. Stat. § 893.13—the same
provision Coissy was convicted of violating—was a controlled
substance offense for the purposes of the Guidelines. Id.
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4 Opinion of the Court 20-14797
Coissy suggests that this Court is not bound by Smith
because that decision conflicts with the Supreme Court’s decisions
in Elonis v. United States, 575 U.S. 723 (2015), and McFadden v. United
States, 576 U.S. 186 (2015). But we have since affirmed Smith’s
holding, and we remain “bound by Smith unless and until it is
overruled or undermined to the point of abrogation by the
Supreme Court or this Court sitting en banc.” United States v.
Bishop, 940 F.3d 1242, 1254 (11th Cir. 2019).1
In sum, Coissy’s aggravated assault conviction is a “crime of
violence,” and his conviction for possession of heroin with intent
to deliver or sell is a “controlled substance offense.” The district
court did not err by calculating Coissy’s base offense level under
guideline 2K2.1(a)(1) or by classifying him as a career offender
under guideline 4B1.1. Accordingly, we AFFIRM.
1 In his supplemental briefing, Coissy raises additional arguments about why
his prior drug conviction is not a controlled substance offense. He argues that
a “controlled substance offense” under the Guidelines is defined by federal
law, and that his predicate offense does not qualify because Florida’s definition
of “heroin” is broader than that under the federal Controlled Substances Act.
We decline to entertain these new arguments that appear neither in Coissy’s
initial nor reply brief. United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000).
Even if we were to entertain them, however, Coissy’s arguments are
foreclosed by this Court’s decision in United States v. Dubois, 94 F.4th 1284,
1294–1300 (11th Cir. 2024).
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