Hylor v. United States, 17-10856

• Citation: 896 F.3d 1219
• Decision Date: 18 July 2018
• Docket Number: No. 17-10856,17-10856
• Parties: Dewey HYLOR, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

896 F.3d 1219

Dewey HYLOR, Plaintiff-Appellant,

v.UNITED STATES of America, Defendant-Appellee.

No. 17-10856

United States Court of Appeals, Eleventh Circuit.

July 18, 2018

Janice Louise Bergmann, Federal Public Defender's Office, Fort Lauderdale, FL, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Petitioner–Appellant.

Nicole D. Mariani, Wifredo A. Ferrer, Tonya R. Long, Assistant U.S. Attorney, Anne P. McNamara, Emily M. Smachetti, U.S. Attorney Service–SFL, Miami, FL, for Respondent–Appellee.

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and RESTANI,^* Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether Florida attempted first-degree murder is a "violent felony" within the meaning of the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). Following his conviction for being a felon in possession of a firearm, Dewey Hylor received an enhanced sentence under the Act because he was previously convicted of three violent felonies: Florida attempted first-degree murder, Florida aggravated assault, and Florida strong-arm robbery. On post-conviction review, 28 U.S.C. § 2255, Hylor argued that none of these convictions qualifies as a violent felony, but the district court disagreed. We affirm. Florida attempted first-degree murder is a violent felony because it requires the attempted use of physical force that is capable of causing pain or injury. And we are bound by precedent to hold that Florida aggravated assault and Florida strong-arm robbery are violent felonies.

I. BACKGROUND

In 2008, a jury convicted Hylor of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and the district court imposed an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because he had previously committed three violent felonies. Although the presentence investigation report did not specify which convictions triggered the enhanced sentence, it stated that Hylor had been convicted of Florida attempted first-degree murder, Florida aggravated assault, and Florida strong-arm robbery. Hylor did not object to the findings of fact or the "manner in which sentence was pronounced." And we affirmed his judgment of conviction and sentence. See United States v. Hylor , 353 Fed. App'x 361 (11th Cir. 2009).

After filing several unsuccessful pro se motions, Hylor obtained representation and filed an application in this Court for leave to file a second or successive motion to vacate his sentence, 28 U.S.C. § 2255(h)(2). He argued that he was entitled to relief under Johnson v. United States , which held that the residual clause of the Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). We granted the application, and a few days later, Hylor filed an amended motion to vacate his sentence in the district court.

The district court denied Hylor’s motion. It ruled that Hylor was not entitled to relief under Johnson because his prior convictions qualified as predicate convictions under the elements clause of the Act, 18 U.S.C. § 924(e)(2)(B)(i). It explained that precedent established that aggravated assault and strong-arm robbery are violent felonies. And it determined that attempted first-degree murder also satisfies the definition of violent felony. It reasoned that under Florida law, "the attempted killing of a human being requires the intended destruction of a human body, [so] an individual cannot be convicted of attempted first-degree murder without attempting to inflict bodily injury serious enough to result in death." And it stated that the "knowing or intentional causation of bodily injury necessarily involves the use of physical force." It then concluded that Hylor "ha[d] the requisite three ... predicates to qualify him as an armed career criminal subject to the enhanced penalties under [ section] 924(e)," and it issued a certificate of appealability on that question.

II. STANDARD OF REVIEW

"In a Section 2255 proceeding, we review legal issues de novo and factual findings [for] clear error...." Jeffries v. United States , 748 F.3d 1310, 1313 (11th Cir. 2014) (quoting Lynn v. United States , 365 F.3d 1225, 1232 (11th Cir. 2004) ). "Whether ... particular conviction[s] [are] violent felon[ies] under ‘the [Armed Career Criminal Act] is a question of law we consider de novo .’ " United States v. Seabrooks , 839 F.3d 1326, 1338 (11th Cir. 2016) (quoting United States v. Canty , 570 F.3d 1251, 1254 (11th Cir. 2009) ).

III. DISCUSSION

Hylor argues that Florida attempted first-degree murder is not a violent felony under the Armed Career Criminal Act. He maintains that the state crime can be committed by "surreptitiously poisoning [a] victim" who does not die, and that poisoning does not require enough violence to qualify as a violent felony under the federal Act. He also concedes that our precedents establish that Florida aggravated assault and strong-arm robbery qualify as violent felonies under the elements clause. We conclude that Hylor’s appeal fails because attempted first-degree murder satisfies the elements clause of the Act.

The Armed Career Criminal Act provides that a defendant convicted of being a felon in possession of a firearm or ammunition, 18 U.S.C. § 922(g)(1), must be sentenced to a mandatory minimum term of 15 years if he has three or more past convictions for a "violent felony," 18 U.S.C. § 924(e)(1). The elements clause of section 924(e) defines a "violent felony" as any crime punishable by more than one year of imprisonment that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). And we have explained that, although "the meaning of ‘physical force’ is a question of federal law," we are "bound by a state supreme court’s interpretation of state law, including its determination of the elements of the underlying state offense." United States v. Hill , 799 F.3d 1318, 1322 (11th Cir. 2015).

We use the categorical approach to evaluate whether a state offense has a use-of-force element. Under this approach, we "may ‘look only to the statutory definitions’—i.e. , the elements—of a defendant’s prior offenses, and not ‘to the particular facts underlying those convictions.’ " Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (emphasis omitted) (quoting Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). We determine whether a state statute defines only "violent felon[ies]," 18 U.S.C. § 924(e)(2)(B), by evaluating "the least culpable conduct criminalized by the statute," United States v. Deshazior , 882 F.3d 1352, 1357 (11th Cir. 2018).

To qualify under the elements clause, a state offense must require the defendant to commit, to attempt, or to threaten physical acts that are directly or indirectly "capable of causing physical pain or injury." Id. at 1358 (quoting United States v. Vail-Bailon , 868 F.3d 1293, 1301 (11th Cir. 2017) (en banc)). The offense must involve force that is "physical," meaning that it must be "exerted by and through concrete bodies." Curtis Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The force must be "violent," meaning that the force must be "capable of causing physical pain or injury to another." Deshazior , 882 F.3d at 1357 (emphasis omitted) (quoting Curtis Johnson , 559 U.S. at 140, 130 S.Ct. 1265 ). And the "use" of force requires "the knowing or intentional application of force." United States v. Castleman , 572 U.S. 157, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014) ("[T]he word use conveys the idea that the thing used (here, physical force) has been made the user’s instrument." (citation and internal quotation marks omitted)). But we have stressed that "whether [a] use of force ‘occurs indirectly, rather than directly (as with a kick or punch), does not matter.’ " Deshazior , 882 F.3d at 1357 (quoting Castleman , 134 S.Ct. at 1415 ).

Hylor relies on a hypothetical "surreptitious poisoning" that fails to kill the intended victim to argue that attempted first-degree murder under Florida law fails the categorical test, but we are unpersuaded. We agree with Hylor that a poisoning satisfies the definition of the state offense. The Florida Supreme Court has upheld convictions for attempted first-degree murder where the defendants administered poison to victims who did not die. See, e.g. , Trepal v. State , 621 So.2d 1361, 1362–63 (Fla. 1993) ; see also Nelson v. State , 450 So.2d 1223, 1224–25 (Fla. Dist. Ct. App. 1984). But we disagree with Hylor’s argument that this conduct "does not involve the use of violent force." Our precedents make clear that even poisoning is a violent felony under the elements clause. See Deshazior , 882 F.3d at 1357–58. Poisoning someone is a physical, as opposed to an "intellectual" or "emotional," use of force because it involves force "exerted by and through concrete bodies." Curtis Johnson , 559 U.S. at 138, 130 S.Ct. 1265. And administering poison to kill someone is an intentional act that is "capable of causing physical pain or injury." Deshazior , 882 F.3d at 1358 (quoting Vail-Bailon , 868 F.3d at 1301 ).

True, poisoning someone does not involve the "direct application of violent force," id. , but "[t]hat the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter," Castleman , 134 S.Ct. at 1415. Indeed, we considered Hylor’s poisoning hypothetical in Deshazior and concluded that an "actor [who] knowingly employs a device to indirectly cause physical harm," including through "a chemical reaction," uses physical force. 882 F.3d at 1358. The Act does not distinguish between defendants who kill by "[p]oisoning someone, sloshing bleach in a victim’s face, ... saying the world ‘sic’ to a dog," or "pulling the trigger of a gun." Id. at 1357–58 (internal quotation marks...