UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDWIN DESHAZIOR, Defendant-Appellant.
No. 16-11737
United States Court of Appeals, Eleventh Circuit
February 20, 2018
D.C. Docket No. 1:15-cr-20970-DMM-1. Appeal from the United States District Court for the Southern District of Florida.
[PUBLISH]
Before JORDAN and JILL PRYOR, Circuit Judges, and REEVES,* District Judge.
Edwin Deshazior appeals his 180 month sentence following his conviction for being a felon in possession of a firearm. He argues thаt he should not have received a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA“),
I.
Miami-Dade police officers found Edwin Deshazior in possession of a Smith & Wesson Model 10-8 revolver and four .38 caliber rounds of ammunition on December 6, 2015. He subsequently pleaded guilty to possession of a firearm by a convictеd felon in violation of
Deshazior objected, arguing that his prior convictions did not constitute violent felonies under the ACCA. He further contеnded that his sentence could not be enhanced based on these prior convictions because they were not alleged in the indictment. The district court overruled Deshazior‘s objections and sentenced him to serve the statutory mandatory minimum term of 180 months, followеd by five years of supervised release. This appeal followed.
II.
The ACCA requires that a fifteen-year mandatory minimum sentence be imposed on defendants convicted of felon in possession offenses who also have three prior convictions for violеnt felonies and/or serious drug offenses.
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [(the “elements clause“)]; or
(ii) is burglary, arson, or extortion, involves use of explosives [(the “enumerated offenses clause“)], or otherwise involves conduct that presents a serious potential risk of physical injury to another [(the “residual clause“)][.]
We review de novo whether a defendant‘s prior convictions qualify as violent felonies under the ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015) (citing United States v. Petite, 703 F.3d 1290, 1292 (11th Cir. 2013)). Constitutional challenges to a defendant‘s sentence are also reviewed de novo. United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013) (citing United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)).
A. Aggravated Assault
Deshazior‘s argument that aggravated assault under
Deshazior argues that Turner is not controlling because it incorrectly applied United States v. Palomino Garcia, 606 F.3d 1317, 1334-36 (11th Cir. 2010), which held that, for purposes of the Sentencing Guidеlines, crimes that can be accomplished with a mens rea of recklessness do not involve the “use of physical force.” We recently rejected a similar argument, explaining that “even if Turner is flawed, that does not give us, as a later panel, the authority to disregard it.” United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017) (holding that a Florida conviction for aggravated assault is a crime of violence under U.S.S.G. § 2K2.1(a)(2) cmt. n.1); see also In re Hires, 825 F.3d 1297, 1301 (11th Cir. 2016). Thus, Deshazior‘s 1989 conviction for aggravated assault constitutes a violent felony under the ACCA.
B. Resisting an Officer with Violence
Deshazior‘s argument that resisting an officer with violence under
Deshazior contends that these cases were wrongly decided because the least act criminalized by the statute includes conduct which does not involve the “use of physical force,” and so the statute is overbroad and cannot be used to enhance a defendant‘s sentence under the ACCA. See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013); Descamps v. United States, 133 S. Ct. 2276, 2290 (2013).
Specifically, Deshazior argues that resisting an officer with violence can be accomplished by “wiggling and struggling.” State v. Green, 400 So. 2d 1322, 1323 (Fla. Dist. Ct. App. 1981).
Again, however, we have previously rejected Deshazior‘s argument. In Romo-Villalobos, we reviewed the Florida cases Deshazior has cited, and found that they did not establish that de minimis force, such as wiggling and struggling, was sufficient to establish violence under § 843.01. See Romo-Villalobos, 674 F.3d at 1249-50. As we noted with respect to Turner, supra, Romo-Villalobos is binding in this circuit “unlеss and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this Court sitting en banc.” Sneed, 600 F.3d at 1332 (citing Smith, 236 F.3d at 1300 n.8). Accordingly, Deshazior‘s 2005 conviction for resisting an officer with violence is a conviction for a violent felony under the ACCA.
C. Sexual Battery
Deshazior next argues that his 1989 conviction for sexual battery аnd his 1993 conviction for attempted sexual battery are not convictions for violent felonies under the ACCA‘s elements clause. As a provisional matter, he argues that the government failed to establish that he was convicted
The Florida sexual battery statute,
The remaining sections of
Florida courts have treated the various sections of § 794.011 аs distinct crimes with different elements, and the Florida Standard Jury Instructions provide different instructions for the different sections of § 794.011. See Gould v. State, 577 So. 2d 1302 (Fla. 1991); Shaara v. State, 581 So. 2d 1339 (Fla. Dist. Ct. App. 1991); Fla. Std. Jury Instr. 11.1-11.6(a) (1989). Accordingly, § 794.011 essentially defines “multiple crimes” and is divisible. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Because the statute is divisible, we employ the modified categorical аpproach to “determine which statutory phrase was the basis for the conviction.” Descamps, 133 S. Ct. at 2283-84 (quoting Johnson, 559 U.S. at 144). Once we have determined under which statutory phrase the defendant was necessarily convicted, we use the categorical approach to analyze whethеr that phrase requires the use, attempted use, or threatened use of physical force as required by the ACCA‘s elements clause,
The information for Deshazior‘s 1989 sexual battery conviction indicates that he was charged under
The issue presented here is whether sexual battery with the use or threatened use of “a deadly weapon” can be accomplished without “the use, attempted use, or threatened use of рhysical force.”
The jury instructions for sexual battery under
Deshazior offers two related arguments in support of his position that, for purposes of the Florida sexual battery statute, the use or threatened use of “a deadly weapon” does not require the use, attempted use, or threatened use of “physical force.” First, he argues that a defendant could satisfy this element by committing a sexual battery with a “deadly weapon” that does not require the direct application of “physical force,” such as poison, anthrax, or a chemical weapon. Second, heeding our warning not to engage in “florid exercise[s] of legal imagination,” Vail-Bailon, 868 F.3d at 1307, he argues that under existing Florida law a defendant could satisfy the “deadly weapon” requirement by sloshing bleach into the victim‘s face, or commanding his dog to “sic” the victim. Deshazior contends that doing so would not involve the use of ”violent force—that is, force capable of causing physical pain or injury to anothеr.” Johnson, 559 U.S. at 140. We disagree.
When a statute requires the use of force “capable of causing physical pain or injury to another person,” id., whether that use of force “occurs indirectly, rather than directly (as with a kick or punch), does not matter.” United States v. Castleman, 134 S. Ct. 1405, 1415 (2014). Poisoning someone, “sloshing” bleach in а victim‘s face, or saying the word “sic” to a dog may not
The force initiated in each of Deshazior‘s examples constitutes “physical force” under the ACCA because it is “capable of causing physical pain or injury.” Vail-Bailon, 868 F.3d at 1301. Because it does not matter whether that use of force occurs indirectly rather than directly, we reject Deshazior‘s argument that a defendant can use or threaten to use “a deadly weapon” under
Accordingly, a conviction for sexual battery with a deadly weapon under
D. Prior Convictions Not Alleged in the Indictment
Finally, Deshazior argues that enhancing his sentence based on his prior convictions was unconstitutional, because his prior convictions were not alleged in his indictment nor proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000). As we have previously explained, ”Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), forecloses [this] argument.” United States v. Sparks, 806 F.3d 1323, 1350 (11th Cir. 2015). The district court could enhanсe Deshazior‘s sentence based on his prior convictions for violent felonies, even though the prior convictions were not identified in his indictment.
III.
Under this Court‘s prior precedent, Florida convictions for aggravated assault and resisting an officer with violence аre categorically violent felonies under the ACCA. Sexual battery with a deadly weapon under