[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-12420 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEITH A. PENN,

Defendant-Appellant.

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Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:20-cr-00079-RH-MAF-1 ____________________ USCA11 Case: 21-12420 Document: 80-1 Date Filed: 03/24/2023 Page: 2 of 27

2 Opinion of the Court 21-12420

Before LAGOA, BRASHER, and ED CARNES, Circuit Judges. BRASHER, Circuit Judge: After he pleaded guilty to several counts, including two vio- lations of 18 U.S.C. § 922(g), the district court sentenced Keith Penn to the mandatory minimum sentence under the Armed Career Criminal Act. In doing so, the court concluded that Penn’s two prior convictions for selling cocaine in violation of Florida Statutes § 893.13(1)(a) were “serious drug offense[s]” that Penn “committed on occasions different from one another.” 18 U.S.C. § 924(e). Penn appeals both determinations. Penn contends that his sale-of-cocaine offenses were not se- rious drug offenses under ACCA for two reasons. First, he argues a serious drug offense is an offense that requires proof that the de- fendant knew of the illicit nature of the controlled substance, which Section 893.13(1)(a) does not require. Second, he asserts that his sale-of-cocaine offenses are not serious drug offenses because Sec- tion 893.13(1)(a) proscribes attempting to transfer a controlled sub- stance, which he says is not “distributing” a controlled substance and therefore the offense is not a serious drug offense under ACCA. He also contends that his sale-of-cocaine offenses, which involved the sale of similar amounts of cocaine to a confidential informant at the same location thirty days apart, did not occur on “occasions different from one another” and cannot both count toward an en- hanced sentence under ACCA. USCA11 Case: 21-12420 Document: 80-1 Date Filed: 03/24/2023 Page: 3 of 27

21-12420 Opinion of the Court 3

We disagree with Penn’s contentions. Both of his arguments for why his sale-of-cocaine offenses are not serious drug offenses fail. Our precedent squarely forecloses his mens rea argument about the need to prove knowledge of the controlled substance’s illicit nature. And attempted transfers of a controlled substance are “distributing” as ACCA uses the term. Likewise, his argument that his sale-of-cocaine offenses did not occur on separate occasions fails because he committed the crimes thirty days apart. I.

The facts of this appeal are straightforward and undisputed. Keith Penn pleaded guilty to five counts of cocaine- and firearm- related offenses. Two counts resulted from his possessing a firearm and ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). Two more counts pertained to his violations of 21 U.S.C. § 841(a)(1) and 841(b)(1)(c), which proscribe possessing cocaine with intent to dis- tribute it. And the final count stemmed from h