United States v. Lee, 701 F. App'x 697

Rashad Akim Lee was charged in 2009 with being a felon in possession of a firearm; the government sought an ACCA enhancement based on three prior convictions (one Florida drug conviction and two convictions under Fla. Stat. § 843.01 for resisting an officer with violence).
Lee pleaded guilty and was sentenced to the ACCA mandatory minimum (180 months); this court previously affirmed under the ACCA residual clause.
After Johnson v. United States (Johnson II) struck the ACCA residual clause as void for vagueness (and Welch made that ruling retroactive), Lee brought a § 2255 motion challenging the use of his § 843.01 convictions as ACCA predicates.
The district court denied relief, concluding the § 843.01 convictions qualified under the ACCA elements clause; Lee obtained a certificate of appealability and appealed.
The Tenth Circuit applied the categorical approach (examining the minimum conduct criminalized by § 843.01) and surveyed Florida precedent describing convictions based on conduct such as "gripping an officer’s hand," "holding a doorknob and wiggling/struggling," scuffles, and a case where a fleeing driver clipped an officer’s hand with a mirror.
Comparing those minimum acts to the Supreme Court’s definition of "physical force" (violent force capable of causing pain or injury), the court concluded § 843.01 criminalizes conduct that can be nonviolent and therefore does not categorically qualify as an ACCA violent felony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Florida § 843.01 (resisting an officer with violence) categorically qualifies as an ACCA "violent felony" under the elements clause	Government: § 843.01 involves "offering or doing violence to the person" and thus meets the elements requirement	Lee: Florida cases show convictions can be based on minor, nonviolent conduct (e.g., wiggling/struggling), so the statute does not require violent force	The court held § 843.01 does not categorically qualify as an ACCA predicate because its minimum criminalized conduct can be nonviolent (insufficient "violent force")

Johnson v. United States, 135 S. Ct. 2551 (Sup. Ct. 2015) (ACCA residual clause is unconstitutionally vague)
Welch v. United States, 136 S. Ct. 1257 (Sup. Ct. 2016) (Johnson II applies retroactively on collateral review)
Johnson v. United States, 559 U.S. 133 (Sup. Ct. 2010) ("physical force" under ACCA means violent force capable of causing pain or injury)
Shepard v. United States, 544 U.S. 13 (Sup. Ct. 2005) (describing the demanding nature of the elements-based categorical approach)
Moncrieffe v. Holder, 133 S. Ct. 1678 (Sup. Ct. 2013) (categorical approach uses the minimum conduct criminalized)
Leocal v. Ashcroft, 543 U.S. 1 (Sup. Ct. 2004) (discussing crimes of violence as "violent, active crimes")
Flores-Cordero v. United States, 723 F.3d 1085 (9th Cir. 2013) (Arizona resisting-arrest statute not categorically a crime of violence where convictions rested on minor scuffles)
United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) (analysis of nonviolent forcible contact in determining categorical violence)
United States v. Ridens, 792 F.3d 1270 (10th Cir. 2015) (de novo review standard for whether a prior conviction qualifies as an ACCA violent felony)
United States v. Harris, 844 F.3d 1260 (10th Cir. 2017) (application of the categorical approach and discussion of "violent force")
United States v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012) (contrasting Eleventh Circuit view that § 843.01 can be an ACCA predicate)