United States v. White
| Decision Date | 29 January 2018 |
| Docket Number | No. 17-11360,17-11360 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY V. WHITE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 6:12-cr-00166-GKS-TBS-1
Appeal from the United States District Court for the Middle District of Florida
Before WILLIAM PRYOR, ANDERSON and HULL, Circuit Judges.
Anthony White appeals his 180-month sentence, imposed on resentencing, for possessing with intent to distribute 28 grams or more of cocaine base and being a felon in possession of a firearm. On appeal, White argues that the district court erred in resentencing him under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because his Florida conviction for resisting an officer with violence under Fla. Stat. § 843.01 does not qualify as a "violent felony" under the ACCA's elements clause. After careful review, we affirm.
In July 2012, a grand jury indicted White on one count of possession with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count 1), one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1) (Count 2), and one count of possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count 3). White later pled guilty to Counts 1 and 2 of the indictment, and the district court dismissed Count 3 at the government's request.
At the time of White's plea and original sentencing proceeding, both parties and the district court agreed that White was an armed career criminal subject to the ACCA's 15-year mandatory minimum sentence. In determining that White was an armed career criminal, the presentence report ("PSR") listed the following five Florida convictions:
The district court sentenced White to the mandatory minimum (180 months), and White did not file a direct appeal.
In June 2016, following the Supreme Court's decision in Samuel Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), invalidating the ACCA's residual clause, White filed a counseled 28 U.S.C. § 2255 motion to vacate his sentence, arguing that he no longer qualified as an armed career criminal because his prior Florida convictions for resisting an officer with violence and fleeing or attempting to elude no longer qualified as violent felonies. Due to some confusion regarding amended judgments that were issued as to two of White's stateconvictions since his original federal sentencing,2 the government initially agreed that White no longer qualified for an ACCA sentence, and the parties filed a joint stipulation stating that White's § 2255 motion should be granted and he should be resentenced without the ACCA enhancement. Accordingly, the district court granted White's § 2255 motion, vacated the judgment in his criminal case, and directed the U.S. Probation Office to prepare an updated guidelines calculation.
Upon reviewing White's prior convictions in accordance with the district court's order, the probation officer determined that White still qualified for the ACCA enhancement based on the following Florida convictions:
The district court directed the parties to respond to the probation officer's recommendation. The government agreed with the probation officer's assessmentthat White remained an armed career criminal. In relevant part, the government argued that White's conviction for resisting an officer with violence under Fla. Stat. § 843.01 categorically qualifies as violent felony under the ACCA's elements clause, citing this Court's decisions in United States v. Hill, 799 F.3d 1318 (11th Cir. 2015), and United States v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012), both of which held that a conviction under § 843.01 involves the requisite degree of force to qualify as an offense that "has as an element the use, attempted use, or threatened use of physical force." 18 U.S.C. § 924(e)(2)(B)(i).
White contended that his resisting an officer with violence conviction did not qualify as an ACCA predicate under the elements clause. White asserted that Romo-Villalobos had been abrogated by the Supreme Court's subsequent decisions in Moncrieffe v. Holder, 569 U.S. 184, 133 S. Ct. 1678 (2013), and Descamps v. United States, 570 U.S. 254, 133 S. Ct 2276 (2013). Although Hill was decided after Moncrieffe and Descamps, White argued that Hill failed to consider Moncrieffe or Descamps, and as such, need not be followed. White maintained that, applying the appropriate analysis, convictions under § 843.01 do not qualify as ACCA predicates under the elements clause because: (1) the "violence" element of the offense could be satisfied by a de minimis use of force; and (2) the statute requires only general intent to commit the actus reus of the offense (resisting an officer) and does not require a specific intent to apply violent force.
At the resentencing hearing, White first argued that the government should be bound by its initial stipulation that he was no longer an armed career criminal. White then reiterated his arguments as to why his § 843.01 conviction did not qualify as an ACCA predicate under the elements clause. The government responded that it should not be bound by the stipulation because it was made based on incorrect facts and that Hill controlled the outcome of this case. See Hill, 799 F.3d at (, after Moncrieffe and Descamps, that a conviction under § 843.01 categorically qualifies as a violent felony under the ACCA's elements clause).
The district court agreed with the government that it was bound by Hill and concluded that White still qualified as an armed career criminal. Accordingly, the district court resentenced White to the same 180-month sentence he originally received and issued an amended judgment to that effect. White now appeals from that amended judgment.
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 crime punishable by a term of imprisonment exceeding one year that:
18 U.S.C. § 924(e)(2)(B). The first prong is referred to as the "elements clause," while the second prong contains the "enumerated crimes" and the "residual clause." United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). In Samuel Johnson, the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague, but did not call into question the validity of the ACCA's enumerated crimes or elements clause. 135 S. Ct. at 2563. Under the elements clause, "the phrase 'physical force' means violent force—that is, force capable of causing physical pain or injury to another person." Curtis Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010).
Florida law provides that anyone who "knowingly and willfully resists, obstructs, or opposes any [law enforcement] officer . . . by offering or doing violence to the person of such officer . . . is guilty of a felony of the third degree." Fla. Stat. § 843.01. Under Florida law, resisting an officer with violence is a general intent crime, meaning that the defendant must have a general intent to knowingly and willfully impede an officer in the performance of his or her duties, and need not have the specific intent of doing violence. Polite v. State, 973 So. 2d 1107, 1112 (Fla. 2007); Frey v. State, 708 So. 2d 918, 920 & n.2 (Fla. 1998). Inother words, to be convicted under § 843.01, the defendant must deliberately engage in the violent conduct with the purpose of resisting or obstructing a law enforcement officer. See Polite, 973 So. 2d at 1112-13 ().
Furthermore, "violence is a necessary element of the offense" of resisting an officer with violence. Rawlings v. State, 976 So. 2d 1179, 1181-82 (Fla. Dist. Ct. App. ...
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