United States v. Fritts

• Citation: 841 F.3d 937
• Decision Date: 08 November 2016
• Docket Number: No. 15-15699,15-15699
• Parties: United States of America, Plaintiff–Appellee, v. Derwin Darryl Fritts, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

841 F.3d 937

United States of America, Plaintiff–Appellee,

v.Derwin Darryl Fritts, Defendant–Appellant.

No. 15-15699

United States Court of Appeals, Eleventh Circuit.

Date Filed: November 8, 2016

Francis D. Murray, Germaine Seider, Arthur Lee Bentley, III, Shauna S. Hale, U.S. Attorney's Office, Tampa, FL, for Plaintiff–Appellee.

Rosemary Cakmis, Donna Lee Elm, Robert Godfrey, Conrad Benjamin Kahn, Federal Public Defender's Office, Orlando, FL, Frank William Zaremba, Federal Public Defender's Office, Tampa, FL, for Defendant–Appellant.

Before HULL, MARCUS and FAY, Circuit Judges.

HULL

, Circuit Judge:

After pleading guilty, Derwin Fritts appeals his total 180–month sentence for three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)

. The district court sentenced Fritts as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on Fritts's prior convictions for: (1) aggravated assault and aggravated battery, in violation of Florida Statutes §§ 784.021, 784.045 ; (2) robbery with a firearm, in violation of Florida Statutes § 812.13, and (3) sale of cocaine, in violation of Florida Statutes § 893.13.

On appeal, Fritts argues that the district court erred in concluding that his 1989 armed robbery conviction qualifies as a “violent felony” under the elements clause of the ACCA.¹ After review, we affirm.

I. THE ACCA

Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g)

is subject to a mandatory minimum sentence of 15 years (180 months) if he has three prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). A “violent felony” is any offense 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; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B)

. The first prong of this definition is referred to as the “elements clause,” while the second prong contains the “enumerated crimes” clause and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Fritts's appeal concerns only the elements clause, as robbery is not an enumerated crime, and the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague in Johnson v. United States, 576 U.S. ––––, ––––, 135 S.Ct. 2551, 2557–58, 2563, 192 L.Ed.2d 569 (2015). Thus, we address whether a 1989 conviction for armed robbery with a firearm under Florida law “has as an element the use, attempted use, or threatened use of physical force against the person of another” within the meaning of the ACCA.

II. FLORIDA ROBBERY STATUTE

Fritts committed his armed robbery offense in July 1988 and was convicted in June 1989. At the time of Fritts's offense, Florida's robbery statute set forth the elements of robbery and robbery with a firearm or other deadly weapon as follows:

(1) “Robbery” means the taking of money or other property which may be the subject of a larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear.

(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. § 812.13(1)

, (2)(a) (1987) (emphasis added). The requirement that the defendant, in the course of the taking, use “force, violence, assault, or putting in fear” has been an element in Florida's robbery statute since at least the 1970s. See United States v. Seabrooks, 839 F.3d 1326, 1339, 2016 WL 6090860, at *10 (11th Cir. Oct. 19, 2016).²

III. DOWD AND ITS PROGENY

In 2006, this Court held in United States v. Dowd

that a 1974 Florida conviction for armed robbery was “undeniably a conviction for a violent felony” under the ACCA's elements clause. 451 F.3d 1244, 1255 (11th Cir. 2006). This Court reached this conclusion “without difficulty” and cited only the ACCA's elements clause. Id.

In several recent cases, this Court has followed Dowd

to conclude that other Florida robbery convictions in 1980, 1986, and 1995 qualified as ACCA predicate convictions under the elements clause. See In re Hires, 825 F.3d 1297 (11th Cir. 2016) (rejecting the claim that Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), undermined our precedent in Dowd and holding that the defendant's 1995 Florida robbery conviction qualified as a violent felony under the ACCA's elements clause, which includes “any felony that ‘has as an element the use, attempted use, or threatened use of physical force’ ”); In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016) (citing Dowd and holding that the defendant's 1980 and 1986 Florida “convictions for armed robbery qualify as ACCA predicates under the elements clause”); In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (concluding that the defendant's two Florida robbery-with-a-firearm convictions and his armed robbery conviction “qualify as violent felonies under our binding precedent” in Dowd and Thomas). Under Dowd and its progeny alone, we must conclude that a Florida armed robbery conviction, such as Fritts's, qualifies as a violent felony under the ACCA's elements clause.³

IV. LOCKLEY

Our Dowd

precedent and our conclusion here are also supported by our decisions holding that a Florida robbery conviction under § 812.13(1), even without a firearm, qualifies as a “crime of violence” under the elements clause in the career offender guideline in U.S.S.G. § 4B1.2(a), which has the same elements clause as the ACCA. United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011) ; In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016) (citing Lockley and concluding that the defendant's 1991 armed robbery offense has “as an element the use, attempted use, or threatened use of physical force against the person of another”).⁴ We review Lockley's analysis about the elements in the Florida robbery statute because it underscores why Dowd and its progeny were correctly decided.

Applying the pure categorical approach in Lockley

, this Court examined the elements of a robbery offense under Florida law, starting with “the taking of money or other property.” See Fla. Stat.§ 812.13(1) ; Lockley, 632 F.3d at 1240 (“We ... disregard the facts of the underlying conviction and look only to the elements of Lockley's prior conviction.”). Applying Florida law about the elements, the Lockley Court found (1) that the taking must be by use of force, violence, assault, or putting the victim in fear, and (2) that “the fear contemplated by the statute is the fear of death or great bodily harm,” stating:

The taking referred to “must be by the use of force or violence or by assault so as to overcome the resistance of the victim, or by putting him in fear so that the victim does not resist.” Fla. Std. Jury Instr. (Crim.) 15.1. The property taken need not be taken from the actual person of the victim, but must be sufficiently under his control “so that it cannot be taken without the use of force, violence, or intimidation directed against the victim.” Id. Assault, in turn, is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Fla. Stat. § 784.011(1)

. And, “[t]he fear contemplated by the statute is the fear of death or great bodily harm.” Magnotti v. State, 842 So.2d 963, 965 (Fla. 4th Dist. Ct. App. 2003) (internal quotation marks omitted).

632 F.3d at 1242

(footnote omitted).

The Lockley

Court then concluded that the “commission of robbery in violation of Fla. Stat. § 812.13(1) necessarily requires that the defendant”:

(1) commit a taking of money or other property from another person or in the custody of another person (2) with the intent to permanently or temporarily deprive the person of the money or property or any benefit thereof (3) using force, violence, or an intentional threat of imminent force or violence against another coupled with an apparent ability to use that force or violence, or by causing the person to fear death or great bodily harm(4) where the money or property has value.

Id. at 1242–43

(emphasis added).⁵ Applying the categorical approach, the Lockley Court analyzed the least culpable of the acts in § 812.12(1), which was “putting in fear.” The Lockley Court stressed that (1) “ ‘putting in fear,’ per Florida law, involves an act causing the victim to fear death or great bodily harm,” (2) “[w]e can conceive of no means by which a defendant could cause such fear absent a threat to the victim's person,” and (3) “[t]he bare elements of § 812.13(1)... satisfy the elements ... clause [ ] of U.S.S.G. § 4B1.2(a).” Id. at 1244–45 (citation and footnote omitted).

Later on, the Lockley

Court repeated that (1) “robbery under that statute requires either the use of force, violence, a threat of imminent force or violence coupled with apparent ability, or some act that puts the victim in fear of death or great bodily harm,” (2) “[a]ll but the latter option specifically require the use or threatened use of physical force against the person of another,” (3) “we find it inconceivable that any act which causes the victim to fear death or great bodily harm would not involve the use or threatened use of physical force,” and (4) “[s]ection 812.13(1) accordingly has, as an element, the ‘use, attempted use, or threatened use of physical force against the person of another.’ U.S.S.G. § 4B1.2(a)(1).” Id.(emphasis added). In Lockley this Court thus held that...