United States v. Lee

• Decision Date: 02 April 2018
• Docket Number: No. 16-16591,No. 16-16590,16-16590
• Citation: 886 F.3d 1161
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael LEE, Defendant-Appellee. Michael Lee, Petitioner-Appellee, v. United States of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

886 F.3d 1161

UNITED STATES of America, Plaintiff-Appellant,

v.Michael LEE, Defendant-Appellee.

Michael Lee, Petitioner-Appellee,

v.United States of America, Respondent-Appellant.

No. 16-16590

No. 16-16591

United States Court of Appeals, Eleventh Circuit.

April 2, 2018

Nicole D. Mariani, Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL, Richard O.I. Brown, U.S. Attorney's Office, FORT LAUDERDALE, FL, for Plaintiff-Appellant.

Michael Caruso, Federal Public Defender, Vanessa Louise Chen, Federal Public Defender's Office, MIAMI, FL, for Defendant-Appellee.

Before MARTIN, JORDAN, and GINSBURG,^* Circuit Judges.

PER CURIAM:

The Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a 15-year minimum sentence on a defendant who is convicted of violating 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon) and has three prior convictions for a "violent felony" or "serious drug offense." The ACCA defines a "violent felony" as any crime punishable by imprisonment greater than one year that:

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

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

§ 924(e)(2)(B). In 2015, the Supreme Court held that the ACCA's residual clause was unconstitutionally vague. See Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2557-60, 192 L.Ed.2d 569 (2015). The following year, the Court held that Johnson applied retroactively on collateral review. See Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

Michael Lee was convicted in 2010 of being a felon in possession of a firearm and sentenced to 15 years in prison under the ACCA. In June of 2016, Mr. Lee filed a motion to vacate his criminal sentence under 28 U.S.C. § 2255 in light of Johnson and Welch . Mr. Lee argued that, because the residual clause could not be used to characterize a prior conviction as a violent felony, he no longer had three predicate violent felony or serious drug offense convictions. As a result, he did not qualify as an armed career criminal, and he could not be subject to an ACCA-enhanced sentence.

In August of 2016, the district court granted Mr. Lee's motion and vacated his 15-year sentence, and on October 5, 2016, it re-sentenced Mr. Lee to 85 months in prison. The government appealed, arguing that Mr. Lee's prior convictions still qualify as ACCA violent felonies.

I

Prior to his federal conviction in 2010, Mr. Lee had three convictions for Florida robbery (two in 1988 and one in 1999) and one conviction for the sale, purchase, or delivery of cocaine. In order for Mr. Lee to qualify as an armed career criminal, then, at least two of his Florida robbery convictions must qualify as violent felonies.¹

Because the ACCA's residual clause is no longer valid, and robbery is not an enumerated offense, Florida robbery must qualify under the ACCA's "elements clause" in order for it to be a violent felony. That, in turn, requires Florida robbery to have "the use, attempted use, or threatened use of physical force" as an element of the crime. See § 924(e)(2)(B)(i). Mr. Lee argues that (1) Florida robbery does not satisfy this test, and, therefore, is never a violent felony; and (2) pre-1997 Florida robbery convictions do not satisfy this test, even if later ones do.²

The district court agreed with the second of these arguments. It concluded that at least two of Mr. Lee's Florida robbery convictions did not constitute violent felonies, and accordingly vacated Mr. Lee's ACCA-enhanced sentence.

II

Unfortunately for Mr. Lee, both of his arguments are now foreclosed by our precedents, and we are therefore required to reverse the district court's vacatur of his 15-year ACCA sentence. Under our prior panel precedent rule, "the holding of the first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels unless and until the first panel's holding is overruled by the Court sitting en banc or by the Supreme Court." Smith v. GTE Corp. , 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).³

In 2006, we held, albeit in a single sentence unsupported by any legal analysis, that Florida robbery is "undeniably ... a violent felony," and in so doing we cited to the ACCA's elements clause. See United States v. Dowd , 451 F.3d 1244, 1255 (11th Cir. 2006) (involving a 1974/pre- Robinson robbery conviction). In 2011, we held that Florida robbery qualified as a crime of violence under the elements clause of § 4B1.2(a)(1) of the Sentencing Guidelines. See United States v. Lockley , 632 F.3d 1238, 1245 (11th Cir. 2011). As in Dowd , our discussion of the elements clause in Lockley was brief and conclusory, and the panel did not analyze Florida case law. See id . at 1244 (stating "we can conceive of no means by which a defendant could cause such fear absent a threat to the victim's person"). Unlike Dowd , Lockley involved a 2001/post- Robinson robbery conviction.⁴

Mr. Lee argues that Dowd is no longer good law. He contends that later Supreme Court cases have provided a detailed analytical framework for courts to use in determining whether a particular state conviction qualifies as a violent felony. See Curtis Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ; Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Because Dowd pre-dated these cases, and because the panel in Dowd performed no legal analysis whatsoever, much less the analysis he says is commanded by the Supreme Court, Mr. Lee argues that the holding in Dowd has been abrogated. Mr. Lee also asserts that pre- Robinson convictions for Florida robbery do not qualify as violent felonies, which would mean, in his case, that Lockley does not bind us.

Mr. Lee's arguments have some force. See, e.g., United States v. Seabrooks , 839 F.3d 1326, 1346-52 (11th Cir. 2016) (Martin, J. concurring in the judgment). Were we free to evaluate them anew, we might well agree with him. But we have recently rejected both of Mr. Lee's arguments.

In October of 2016, two months after the district court vacated Mr. Lee's sentence (and subsequent to each of the Supreme Court cases cited by Mr. Lee), we held in Seabrooks that Lockley remained binding precedent, and that a post- Robinson conviction for Florida robbery remained a violent felony under the ACCA's elements clause. See id . at 1338. The Seabrooks panel disagreed about whether Dowd remained binding precedent, and about whether pre- Robinson Florida robbery convictions qualified as convictions for a violent felony. See id . at 1346 (Baldock, J. concurring in part and concurring in the judgment), and 1346-52 (Martin, J. concurring in the judgment).

One month later, however, we held that Dowd remained binding precedent, and that pre- Robinson Florida robbery convictions were predicate ACCA violent felonies. See United States v. Fritts , 841 F.3d 937, 940-44 (11th Cir. 2016). Thus, subsequent to the Supreme Court cases referenced by Mr. Lee, we have held that both Dowd and Lockley remain binding precedent. See Seabrooks , 839 F.3d at 1338 ; Fritts , 841 F.3d at 940-42. Both of Mr. Lee's arguments are therefore foreclosed.

III

Given Seabrooks and Fritts —both of which were decided after the district court's ruling in this case—we are not free to evaluate the substantive correctness, or current viability, of Dowd and Lockley , and we remain bound to follow both of them. We therefore vacate Mr. Lee's 85-month sentence and remand with instructions that the district court re-instate Mr. Lee's original 15-year sentence.

VACATED AND REMANDED WITH INSTRUCTIONS.

JORDAN, Circuit Judge, concurring:

For an offense to qualify as a "violent felony" under the ACCA's "elements clause," the least of the acts punished must have, as a necessary element, "the use, attempted use, or threatened use of physical force." 18 U.S.C. § 924(e)(2)(B)(i). In holding that Florida robbery is categorically a violent felony under the elements clause, the panel in United States v. Dowd , 451 F.3d 1244, 1255 (11th Cir. 2006), got it wrong. So did the panel in United States v. Lockley , 632 F.3d 1238, 1245 (11th Cir. 2011), which came to the same conclusion under the identical "elements clause" of the career offender provision of the Sentencing Guidelines. Both cases failed to conduct the analysis commanded by the Supreme Court, and did not consider or apply relevant Florida case law. Subsequent cases which followed Dowd and Lockley —such as United States v. Seabrooks , 839 F.3d 1326, 1340-41 (11th Cir. 2016), United States v. Fritts , 841 F.3d 937, 939-44 (11th Cir. 2016), and United States v. Joyner , 882 F.3d 1369, 1378-79 (11th Cir. 2018), among others—are likewise mistaken.

I

In Florida, larceny becomes robbery "when in the course of the taking, there is the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1). These four alternatives constitute different means by which one element of the crime of robbery may be satisfied; they do not constitute four alternative elements. See Fla. Std. Jury Instr. (Crim.) 15.1 (identifying "Force, violence, assault, or putting in fear [ ] used in the course of the taking" as one of the "four elements" required to "prove the crime of Robbery"); Thomas v. State , 183 So.2d 297, 299-300 (Fla. 3d DCA 1966) (stating that force, violence, assault, and putting in fear are "alternative ingredients of the offense conjunctively, and the charge should be sustained if either alternative ingredient is proven") (quoting Montsdoca v. State , 84 Fla. 82, 93 So. 157, 158 (1922) ). When analyzing such an indivisible st...