15 F.4th 1049
11th Cir.2021Background
- Somers was subject to ACCA's 15-year mandatory minimum because the district court counted a prior Florida aggravated assault conviction as a "violent felony" under the ACCA elements clause (use, attempted use, or threatened use of physical force against the person of another).
- The panel initially affirmed Somers's §2255 denial in Somers I, following Eleventh Circuit precedent (Turner) holding Florida aggravated assault categorically qualifies under the elements clause.
- After the Supreme Court decided Borden v. United States (clarifying the elements clause requires purposeful or knowing conduct and excludes reckless mens rea), the Eleventh Circuit held Somers I for reconsideration and requested supplemental briefing.
- Somers argued the elements clause requires specific intent and that Florida aggravated assault is not a specific-intent crime; the government argued the assault statute, by its terms, requires an intent to threaten another.
- The panel identified a split in Florida intermediate appellate authority: several Florida district courts treat simple/aggravated assault as requiring specific intent to threaten a victim, while some decisions (e.g., Kelly, LaValley) have allowed proof via willful/reckless conduct or culpable negligence.
- Because Florida’s supreme court had not authoritatively resolved whether the first element of Fla. Stat. §784.011(1) requires specific intent (or what mens rea it requires), the Eleventh Circuit vacated its prior opinion, granted rehearing, and certified two questions to the Florida Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Borden means the ACCA elements clause requires more than general intent (i.e., specific intent or at least purposeful/knowing mens rea) | Somers: Borden requires specific intent (more than mere intent to perform the act) | Government: Borden requires purposeful/knowing conduct; elements clause can be satisfied if statute requires directing threat at another | Court: Borden holds the elements clause demands purposeful or knowing conduct and excludes reckless mens rea; this affects whether Florida assault qualifies as an ACCA predicate |
| Whether the first element of Fla. Stat. §784.011(1) ("an intentional, unlawful threat by word or act to do violence to the person of another") requires specific intent | Somers: Florida assault does not require specific intent and thus may be divisible or non-qualifying under ACCA | Government: The statute necessarily requires intent to threaten another (i.e., specific intent/purpose to direct the threat at a person) | Court: Panel declined to decide; certified two questions to the Florida Supreme Court asking (1) whether the first element requires specific intent and (2) if not, what mens rea is required |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (Supreme Court 2021) (held the elements clause requires purposeful or knowing conduct and excludes reckless mens rea)
- Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2013) (held Florida aggravated assault categorically meets ACCA elements clause)
- Johnson v. United States, 576 U.S. 591 (2015) (struck down ACCA residual clause as unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson announced a new substantive rule retroactive to collateral review)
- United States v. Jones, 906 F.3d 1325 (11th Cir. 2018) (explained categorical approach for ACCA elements-clause analysis)
- United States v. Golden, 854 F.3d 1256 (11th Cir. 2017) (reaffirmed Turner as binding Eleventh Circuit precedent)
- United States v. Rosales-Bruno, 676 F.3d 1017 (11th Cir. 2012) (federal courts are bound by state courts' construction of state offense elements)
- United States v. Conage, 976 F.3d 1244 (11th Cir. 2020) (endorsed certification to Florida Supreme Court when unsettled state-law questions affect many cases)
- Hackley v. State, 95 So. 3d 94 (Fla. 2012) (interpreted Florida assault language as necessarily including a threat by word or act but did not definitively resolve whether specific intent is required)
- Swift v. State, 973 So. 2d 1196 (Fla. 2d DCA 2008) (reversed aggravated-assault conviction for lack of evidence that defendant specifically intended to threaten officer)
- Kelly v. State, 552 So. 2d 206 (Fla. 5th DCA 1989) (held aggravated assault is a crime of intent but suggested willful/reckless disregard or culpable negligence can substitute for proof of intent)