United States v. Deshazior

• Citation: 882 F.3d 1352
• Decision Date: 20 February 2018
• Docket Number: No. 16-11737,16-11737
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Edwin DESHAZIOR, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

882 F.3d 1352

UNITED STATES of America, Plaintiff–Appellee,

v.Edwin DESHAZIOR, Defendant–Appellant.

No. 16-11737

United States Court of Appeals, Eleventh Circuit.

February 20, 2018

Jonathan Colan, Wifredo A. Ferrer, Anne P. McNamara, Lisette Marie Reid, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Michael Caruso, Federal Public Defender, Katherine Anna Carmon, Federal Public Defender's Office, Miami, FL, Defendant–Appellant.

Before JORDAN and JILL PRYOR, Circuit Judges, and REEVES,^* District Judge.

REEVES, District Judge:

Edwin Deshazior appeals his 180 month sentence following his conviction for being a felon in possession of a firearm. He argues that he should not have received a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(B), because he did not have three prior convictions for violent felonies under the act and because his prior felony convictions were not alleged in his indictment. After careful review, we affirm.

I.

Miami–Dade police officers found Edwin Deshazior in possession of a Smith & Wesson Model 10–8 revolver and four .38 caliber rounds of ammunition on December 6, 2015. He subsequently pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The Probation Office prepared a Presentence Investigation Report ("PSI") which indicated that Deshazior was subject to a fifteen-year statutory mandatory minimum sentence under the ACCA based on the following prior felony convictions under Florida law: (i) a 1989 conviction for sexual battery ( Fla. Stat. § 794.011(3) (1989) ); (ii) a 1989 conviction for aggravated assault ( Fla. Stat. §§ 784.011, 784.021 (1989) ); (iii) a 1993 conviction for attempted sexual battery ( Fla. Stat. §§ 794.011(3), 777.011 (1991) ); (iv) a 1993 conviction for kidnapping ( Fla. Stat. §§ 787.01, 775.087 (1991) ); and (v) a 2005 conviction for resisting an officer with violence ( Fla. Stat. § 843.01 (2005) ).

Deshazior objected, arguing that his prior convictions did not constitute violent felonies under the ACCA. He further contended that his sentence could not be enhanced based on these prior convictions because they were not alleged in the indictment. The district court overruled Deshazior's objections and sentenced him to serve the statutory mandatory minimum term of 180 months, followed by five years of supervised release. This appeal followed.

II.

The ACCA requires that a fifteen-year mandatory minimum sentence be imposed on defendants convicted of felon in possession offenses who also have three prior convictions for violent felonies and/or serious drug offenses. 18 U.S.C. § 924(e)(1). The ACCA defines a "violent felony" as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [ (the "elements clause") ]; or

(ii) is burglary, arson, or extortion, involves use of explosives [ (the "enumerated offenses clause") ], or otherwise involves conduct that presents a serious potential risk of physical injury to another [ (the "residual clause") ][.]

18 U.S.C. § 924(e)(2)(B). Sexual battery, aggravated assault, attempted sexual battery, kidnapping, and resisting an officer with violence do not appear in the enumerated offenses clause. And after Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the residual clause no longer applies. As a result, this case turns on whether three of Deshazior's prior felony convictions constitute violent felonies under the ACCA's elements clause. 18 U.S.C. § 924(e)(2)(B)(i).

We review de novo whether a defendant's prior convictions qualify as violent felonies under the ACCA. United States v. Hill , 799 F.3d 1318, 1321 (11th Cir. 2015) (citing United States v. Petite , 703 F.3d 1290, 1292 (11th Cir. 2013) ). Constitutional challenges to a defendant's sentence are also reviewed de novo .

United States v. Weeks , 711 F.3d 1255, 1259 (11th Cir. 2013) (citing United States v. Paz , 405 F.3d 946, 948 (11th Cir. 2005) ).

A. Aggravated Assault

Deshazior's argument that aggravated assault under Fla. Stat. § 784.021 is not a violent felony is foreclosed by our prior precedent. In Turner v. Warden Coleman FCI , 709 F.3d 1328, 1337–38 (11th Cir. 2013), we held that Fla. Stat. § 784.021 qualifies as a violent felony under the ACCA's elements clause. Turner is binding in this circuit "unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this [C]ourt sitting en banc ." United States v. Sneed , 600 F.3d 1326, 1332 (11th Cir. 2010) (citing Smith v. GTE Corp. , 236 F.3d 1292, 1300 n.8 (11th Cir. 2001) ).

Deshazior argues that Turner is not controlling because it incorrectly applied United States v. Palomino Garcia , 606 F.3d 1317, 1334–36 (11th Cir. 2010), which held that, for purposes of the Sentencing Guidelines, crimes that can be accomplished with a mens rea of recklessness do not involve the "use of physical force." We recently rejected a similar argument, explaining that "even if Turner is flawed, that does not give us, as a later panel, the authority to disregard it." United States v. Golden , 854 F.3d 1256, 1257 (11th Cir. 2017) (holding that a Florida conviction for aggravated assault is a crime of violence under U.S.S.G. § 2K2.1(a)(2) cmt. n.1); see also In re Hires , 825 F.3d 1297, 1301 (11th Cir. 2016). Thus, Deshazior's 1989 conviction for aggravated assault constitutes a violent felony under the ACCA.

B. Resisting an Officer with Violence

Deshazior's argument that resisting an officer with violence under Fla. Stat. § 843.01 is not a violent felony is also foreclosed by prior precedent. We previously held that Fla. Stat. § 843.01 qualifies as a violent felony under the ACCA's elements clause. See Hill , 799 F.3d at 1322–23 ; United States v. Romo–Villalobos , 674 F.3d 1246, 1251 (11th Cir. 2012).

Deshazior contends that these cases were wrongly decided because the least act criminalized by the statute includes conduct which does not involve the "use of physical force," and so the statute is overbroad and cannot be used to enhance a defendant's sentence under the ACCA. See Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2290, 186 L.Ed.2d 438 (2013). Specifically, Deshazior argues that resisting an officer with violence can be accomplished by "wiggling and struggling." State v. Green , 400 So.2d 1322, 1323 (Fla. Dist. Ct. App. 1981).

Again, however, we have previously rejected Deshazior's argument. In Romo–Villalobos , we reviewed the Florida cases Deshazior has cited, and found that they did not establish that de minimis force, such as wiggling and struggling, was sufficient to establish violence under § 843.01. See Romo–Villalobos , 674 F.3d at 1249–50. As we noted with respect to Turner , supra , Romo–Villalobos is binding in this circuit "unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this Court sitting en banc ." Sneed , 600 F.3d at 1332 (citing Smith , 236 F.3d at 1300 n.8 ). Accordingly, Deshazior's 2005 conviction for resisting an officer with violence is a conviction for a violent felony under the ACCA.

C. Sexual Battery

Deshazior next argues that his 1989 conviction for sexual battery and his 1993 conviction for attempted sexual battery are not convictions for violent felonies under the ACCA's elements clause. As a provisional matter, he argues that the government failed to establish that he was convicted of sexual battery in 1989 because it did not provide the judgment pertaining to that charge. See United States v. Day , 465 F.3d 1262, 1266 (11th Cir. 2006) ; United States v. Spell , 44 F.3d 936, 939–40 (11th Cir. 1995). However, he concedes that the government did properly establish that he was convicted of attempted sexual battery in 1993, and that the same ACCA analysis applies to both offenses. As a result, we need not resolve this issue, and will proceed to examine the sexual battery conviction.

The Florida sexual battery statute, Fla. Stat. § 794.011, sets out a list of applicable definitions. It defines "sexual battery" as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose." Fla. Stat. § 794.011(1)(h). In United States v. Harris , 608 F.3d 1222, 1226 & n.3 (11th Cir. 2010), we accepted the government's concession that this definition, which was incorporated in the Florida statute for lewd or lascivious battery, does not require as an element the use, attempted use, or threatened use of physical force, because it can be accomplished by "union ... with the sexual organ of another". Under Florida law, this means "contact." Harris does not drive the result here because we only accepted the government's concession for purposes of that case, and because the statute under consideration regarding Deshazior's conviction also requires that the sexual battery be accomplished with the use or threatened use of a deadly weapon.

The remaining sections of Fla. Stat. § 794.011 specify that a conviction for "sexual battery" is a different degree of felony, carrying a different punishment, depending on various factors, such as the victim's age, the victim's physical and mental state, and whether the perpetrator threatened, coerced, or drugged the victim, or used or threatened to use a deadly weapon in the process of committing the sexual battery. See Fla. Stat. § 794.011(2) - (10).

Florida courts have treated the various sections of § 794.011 as distinct crimes with different elements, and the Florida Standard Jury Instructions provide different instructions for the different...