U.S. v. Harris, No. 07-15811. Non-Argument Calendar (11th Cir. 6/16/2010)
| Decision Date | 16 June 2010 |
| Docket Number | No. 07-15811.,07-15811. |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD RAY HARRIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Middle District of Florida, D. C. Docket No. 07-00065-CR-ORL-22KRS.
Before CARNES, BARKETT and PRYOR, Circuit Judges.
ON REMAND FROM THE UNITED STATES SUPREME COURT
The Supreme Court vacated our judgment in this case, United States v. Harris, 305 Fed. App'x 552 (11th Cir. 2008), and remanded it to us for further consideration in light of Johnson v. United States, 559 U.S. ___, 130 S.Ct. 1265 (2010). Harris v. United States, 130 S.Ct. 1734 (2010).
At the center of this case is the Armed Career Criminal Act (ACCA), which imposes a 15-year mandatory minimum prison sentence on a person who has been convicted of being a felon in possession of a firearm, if the person has three earlier convictions "for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). A "violent felony" under the ACCA is a crime punishable by a prison term of more than one year that also:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The outcome of this case depends on whether Donald Ray Harris' Florida state conviction for sexual battery of a child under the age of sixteen is a violent felony under the residual clause in § 924(e)(2)(B)(ii), which is the part of the statutory provision beginning with "otherwise." Harris' crime is not burglary, arson, extortion, or an offense involving the use of explosives. It does meet the plain language requirement of "otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Even though it fits in the plain language of the statute, we must apply the holding of Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 1585 (2008), that strict liability crimes are not "roughly similar" to burglary, arson, extortion, or an offense involving the use of explosives and therefore do not come within the residual clause. See id. at 145, 128 S.Ct. at 1586-87. Before we get to our discussion of that rough similarity requirement for residual clause crimes, we follow the Supreme Court's instruction to reconsider this case in light of Johnson, 559 U.S. ___, 130 S.Ct. 1265, which involves the first definition of "violent felony" in the ACCA.
In Johnson the Supreme Court considered whether the defendant's earlier Florida simple battery conviction was a "violent felony" under 18 U.S.C. § 924(e)(2)(B)(i)—one that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Johnson contended that his 2003 battery conviction could not be counted to classify him as an armed career criminal under § 924(e)(2)(B)(i). 130 S.Ct. at 1268-69.
Under the Florida statute that Johnson had been convicted of violating, a battery could be committed under that statute in any one of three ways: by intentionally causing bodily harm to the victim, or by intentionally striking the victim, or by actually and intentionally touching the victim. Id. at 1269; see Fla. Stat. § 784.03(1)(a). The Supreme Court determined that nothing in the record of Johnson's 2003 battery conviction established that he did anything more than the least of those three things: "`actually and intentionally touch[ing]' the victim."1 130 S.Ct. at 1269 (quoting Fla. Stat. § 784.03(1)(a) (brackets omitted)). As a result, Johnson's battery conviction could only be counted for the purpose of classifying him as an armed career criminal if Id. at 1268. The Court held that it did not because "physical force" in the context of the ACCA's § 924(e)(2)(B)(i) means "violent force." Id. at 1271. The result was that Johnson's battery conviction could not be counted for ACCA purposes. See Id. at 1269, 1274.
The government had asked the Supreme Court to remand the Johnson case to this Court so that we could determine whether Johnson's battery conviction was a violent felony under the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 1274. The reasons the Court declined to do so are that "[t]he Government did not keep this option alive because it disclaimed at sentencing any reliance upon the residual clause," and this Court had already implicitly decided that the residual clause did not apply in those circumstances. Id. That same residual clause is at the center of the present case, and we must determine if it applies to Harris' Florida state court conviction for sexual battery of a child under sixteen years of age. Before doing that, we will set out the procedural facts that frame this issue.
Harris was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Harris, 305 Fed. App'x at 553. He was sentenced to 240 months in prison as an armed career criminal. Id. Harris achieved that status by being convicted twice for selling cocaine and once for sexual battery of a child under the age of sixteen in violation of Fla. Stat. § 800.04(3) (1996) (amended 1999).2 Id. The government proved all three crimes "by submitting certified copies of Harris' convictions, which were based on guilty pleas." Id. at 553-54.
One issue we decided in reviewing Harris' sentence was whether his sexual battery conviction under Fla. Stat. § 800.04(3) was a violent felony within the meaning of § 924(e)(2)(B)(i). See Id. at 554-56. Harris had been convicted under the 1996 version of § 800.04(3), which provided:
800.04. Lewd, lascivious, or indecent assault or act upon or in presence of child
A person who:
. . .
(3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years . . . is guilty of a felony of the second degree . . .
Id. at 555 (quoting Fla. Stat. § 800.04(3) (1990-1996)). That version of the statute also provided that "[u]nder § 794.011(1)(h), `Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ of another.'" Id. at 556. We noted that "[i]n his arguments to the district court Harris repeatedly referred to his crime as `statutory rape,'" but that did not do him any good because the district court concluded that statutory rape is a crime of violence. Id. at 555. We reached the same conclusion and held that "under this Court's minimal physical contact requirement, a violation of Fla. Stat. § 800.04(3) (1996) is a violent felony." Id. at 556.
Under the Supreme Court's Johnson decision, in order for a crime to be a § 924(e)(2)(B)(i) violent felony, it must involve "physical force," which "means violent force—that is force capable of causing physical pain or injury to another person." Johnson, 130 S.Ct. at 1271. The government now concedes that Harris' sexual battery conviction is not a "violent felony" under § 924(e)(2)(B)(i), and we accept that concession for purposes of this case.3
Left for us to decide is whether Harris' conviction under § 800.04(3) qualifies as a "violent felony" under the residual clause contained in § 924(e)(2)(B)(ii)'s definition of the term. The residual clause defines "violent felony" as a crime punishable by imprisonment for more than one year that is not "burglary, arson, or extortion" and does not involve use of explosives, but "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).
Harris contends that the government has waived any reliance on the residual clause because the last time this case was before us the government represented (correctly under the law of the circuit as it then existed) that it was unnecessary for us to consider that clause. See Br. of Appellee (filed Aug. 20, 2008) at 18 ("Because Harris's conviction for violating section 800.04(3) falls squarely within the ambit of 18 U.S.C. § 924(e)(2)(B)(i), resort to the `residual provision' of 18 U.S.C. § 924(e)(2)(B)(ii) is unnecessary. . . ."). Harris also argues that the government should be barred from relying on the residual clause because it did not ask the district court to rule in the alternative that the residual clause applied when that court was addressing the physical force required under § 924(e)(2)(B)(i).
The government never disclaimed reliance on the residual clause in this Court, but simply pointed out to us that under the state of the law at the time there was no need for us to reach the issue of whether the residual clause applied. We agreed and did not reach the issue.4 Much the same thing happened in the district court, which concluded as a matter of law that statutory rape was a violent felony under § 924(e)(2)(B)(i), rendering it pointless to decide anything about § 924(e)(2)(B)(ii) and its residual clause.
Even though the district court did not reach the residual clause issue, we can still decide it. See United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008) () (quotation marks omitted); see also United States v. Day, 465 F.3d 1262, 1264 (11th Cir. 2006) ().5
Three Supreme Court decisions guide our analysis of whether a crime is a violent felony under the ACCA's residual clause. See United States v. Harris, 586 F.3d 1283, 1288 (11th...
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