457 F. App'x 908
11th Cir.2012Background
- Devo was sentenced to 180 months for felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1), 924(e).
- The district court sentenced him as an armed career criminal under ACCA, based on three prior convictions.
- Devo conceded two prior drug convictions; his challenge focused on a Florida resisting-arrest conviction as a violent felony.
- Under ACCA, a violent felony includes crimes with force against a person or those involving serious risk of physical injury.
- Devo contends Begay v. United States undermines using his Florida resisting-arrest conviction; he also challenges the residual-clause vagueness.
- The Eleventh Circuit reviews de novo whether a prior conviction qualifies as a violent felony; it finds no plain error in the residual clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Florida resisting-arrest qualify as a violent felony under ACCA? | Devo (Nix/Hayes rationale) argues it does not under Begay. | Devo asserts Begay controls and resists ACCA classification. | Yes; Florida resisting-arrest qualifies as a violent felony under ACCA. |
| Does Begay v. United States affect whether resisting arrest qualifies? | Devo argues Begay prohibits such predicates. | State that Begay is distinguishable; Florida statute satisfies force element. | Begay does not require reversal; resisting arrest remains a qualifying offense. |
| Is the ACCA residual clause unconstitutionally vague? | Devo argues residual clause is vague, inviting arbitrary enforcement. | No precedent supports vagueness of the ACCA as a whole or its residual clause. | No plain error; residual clause not shown as vague. |
Key Cases Cited
- United States v. McGill, 618 F.3d 1273 (11th Cir. 2010) (establishes de novo review for whether a prior conviction is a violent felony under ACCA)
- United States v. Nix, 628 F.3d 1341 (11th Cir. 2010) (approves treating resisting arrest as a violent felony under ACCA)
- Hayes, 409 F. App’x 277 (11th Cir. 2010) (concludes resisting arrest by violence fits ACCA violent felony framework)
- Begay v. United States, 553 U.S. 137 (Supreme Court 2008) (driving under the influence not a violent felony under ACCA due to lack of force element)
- United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) (plain-error standard for unraised vagueness challenges to ACCA)