UNITED STATES OF AMERICA, Plaintiff - Appellant, versus MICHAEL LEE, Defendant - Appellee. MICHAEL LEE, Petitioner - Appellee, versus UNITED STATES OF AMERICA, Respondent - Appellant.
No. 16-16590, No. 16-16591
United States Court of Appeals for the Eleventh Circuit
April 2, 2018
D.C. Docket No. 0:10-cr-60037-CMA-1; D.C. Docket Nos. 0:16-cv-61460-CMA, 0:10-cr-60037-CMA-1; [PUBLISH]
Before MARTIN, JORDAN, and GINSBURG,* Circuit Judges.
PER CURIAM:
The Armed Career Criminal Act,
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [elements clause]; or
(ii) is burglary, arson, or extortion, involves use of explosives [enumerated clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [residual clause].
Michael Lee was convicted in 2010 of being a felon in possession of a firearm and sentenced to 15 years in prison under the ACCA. In June of 2016, Mr. Lee filed a motion to vacate his criminal sentence under
In August of 2016, the district court granted Mr. Lee‘s motion and vacated his 15-year sentence, and on October 5, 2016, it re-sentenced Mr. Lee to 85 months in prison. The government appealed, arguing that Mr. Lee‘s prior convictions still qualify as ACCA violent felonies.
I
Prior to his federal conviction in 2010, Mr. Lee had three convictions for Florida robbery (two in 1988 and one in 1999) and one conviction for the sale, purchase, or delivery of cocaine. In order for Mr. Lee to qualify as an armed career
Because the ACCA‘s residual clause is no longer valid, and robbery is not an enumerated offense, Florida robbery must qualify under the ACCA‘s “elements clause” in order for it to be a violent felony. That, in turn, requires Florida robbery to have “the use, attempted use, or threatened use of physical force” as an element of the crime. See
The district court agreed with the second of these arguments. It concluded that at least two of Mr. Lee‘s Florida robbery convictions did not constitute violent felonies, and accordingly vacated Mr. Lee‘s ACCA-enhanced sentence.
II
In 2006, we held, albeit in a single sentence unsupported by any legal analysis, that Florida robbery is “undeniably . . . a violent felony,” and in so doing we cited to the ACCA‘s elements clause. See United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006) (involving a 1974/pre-Robinson robbery conviction). In 2011, we held that Florida robbery qualified as a crime of violence under the elements clause of
Mr. Lee argues that Dowd is no longer good law. He contends that later Supreme Court cases have provided a detailed analytical framework for courts to use in determining whether a particular state conviction qualifies as a violent felony. See Curtis Johnson v. United States, 559 U.S. 133 (2010); Moncrieffe v. Holder, 133 S. Ct. 1678 (2013); Descamps v. United States, 133 S. Ct. 2276 (2013); Mathis v. United States, 136 S. Ct. 2243 (2016). Because Dowd pre-dated these cases, and because the panel in Dowd performed no legal analysis whatsoever, much less the analysis he says is commanded by the Supreme Court, Mr. Lee argues that the holding in Dowd has been abrogated. Mr. Lee also asserts that pre-Robinson convictions for Florida robbery do not qualify as violent felonies, which would mean, in his case, that Lockley does not bind us.
Mr. Lee‘s arguments have some force. See, e.g., United States v. Seabrooks, 839 F.3d 1326, 1346-52 (11th Cir. 2016) (Martin, J. concurring in the judgment). Were we free to evaluate them anew, we might well agree with him. But we have recently rejected both of Mr. Lee‘s arguments.
One month later, however, we held that Dowd remained binding precedent, and that pre-Robinson Florida robbery convictions were predicate ACCA violent felonies. See United States v. Fritts, 841 F.3d 937, 940-44 (11th Cir. 2016). Thus, subsequent to the Supreme Court cases referenced by Mr. Lee, we have held that both Dowd and Lockley remain binding precedent. See Seabrooks, 839 F.3d at 1338; Fritts, 841 F.3d at 940-42. Both of Mr. Lee‘s arguments are therefore foreclosed.
III
Given Seabrooks and Fritts – both of which were decided after the district court‘s ruling in this case – we are not free to evaluate the substantive correctness, or current viability, of Dowd and Lockley, and we remain bound to follow both of
VACATED AND REMANDED WITH INSTRUCTIONS.
For an offense to qualify as a “violent felony” under the ACCA‘s “elements clause,” the least of the acts punished must have, as a necessary element, “the use, attempted use, or threatened use of physical force.”
I
In Florida, larceny becomes robbery “when in the course of the taking, there is the use of force, violence, assault, or putting in fear.”
As we have explained, a crime is a violent felony under the elements clause “only if the statute, on its face requires . . . without exception, an element involving the use, attempted use, or threatened use of physical force against a person for every charge brought under the statute.” United States v. Estrella, 758 F.3d 1239, 1244 (11th Cir. 2014) (emphasis added). “[I]f the statute sweeps more broadly,” Descamps, 570 U.S. at 261, then the offense is not a violent felony, regardless of
Significantly, the “physical force” referenced in the ACCA‘s elements clause requires more than just a minimal amount of force. It must be “violent force – that is, force capable of causing physical pain or injury to another.” Johnson I, 559 U.S. at 140. Stated differently, it requires “strong physical force,” “force strong enough to constitute power,” or a “substantial degree of force.” Id. at 140, 142. Whatever descriptive phrase is used, the ACCA‘s elements clause requires a great deal more than just a minimal amount of force.
In applying these principles to a state offense, we must defer to the construction (and application) provided by that state‘s courts. The Supreme Court has made this clear, and so have we. See Johnson I, 559 U.S. at 138 (“We are . . . bound by the Florida [courts‘] interpretation of state law, including [their] determination of the elements of [the statute of conviction].“); United States v. Howard, 742 F.3d 1334, 1346 (11th Cir. 2014) (“We are bound by state courts’ determination and construction of the substantive elements of a state offense.“) (internal quotation marks omitted).
II
A
“Putting in fear” is the least of the four means by which a defendant can commit robbery in Florida. See
The question, then, is whether a reasonable victim can be put in this degree of fear under Florida law without the defendant committing, attempting to commit, or threatening to commit an act of substantial, violent physical force. The panel in Lockley answered this question affirmatively without analyzing Florida case law, saying that it could “conceive of no means by which a defendant could cause such
This analysis is mistaken because it ignores how Florida courts have interpreted robbery “by putting in fear.” Time and again, the Florida courts have held that no force or threatened force is required for robbery “by putting in fear.” As explained in State v. Baldwin, 709 So. 2d 636, 637-38 (Fla. 2d DCA 1998): “[T]he test does not require conduct that is, itself, threatening or forceful. Rather, a jury may conclude that, in context, the conduct would induce fear in the mind of a reasonable person notwithstanding that the conduct is not expressly threatening.” We recognized this very principle four years before Lockley, albeit in an unpublished opinion. See Magnotti v. Sec. Dept. of Corr., 222 F. App‘x 934, 938 (11th Cir. 2007) (“According to Baldwin, the state does not have to prove that the defendant‘s conduct was itself threatening or forceful, but only that the conduct would induce fear in the mind of a reasonable person notwithstanding that the conduct is not expressly threatening.“). Far from announcing a new principle, Baldwin simply explained the precept which Florida courts had already been applying for decades.
The journey starts at least 50 years ago with Flagler v. State, 189 So. 2d 212 (Fla. 4th DCA 1966). The defendant in that case opened the passenger door of a
The Florida Supreme Court affirmed the Fourth District‘s ruling, focusing only on the reasonableness of the victim‘s fear. See Flagler v. State, 198 So. 2d 313, 314 (Fla. 1967) (“The conclusion that [the mother] was indeed actually in fear when [the defendant] seized the pocketbook . . . is not to us strained.“). Noticeably absent was any discussion concerning the use of force or violence, or the presence of threats. The Florida Supreme Court simply recognized that because the victim‘s fear “was generated when she saw a strange hand reaching for her purse,” the robbery conviction should stand. See id.
In E.Y. v. State, 390 So. 2d 776 (Fla. 3d DCA 1980), an elderly woman was “confronted by the defendant and his companion on the sidewalk.” Id. at 777. The
The First District weighed in on the subject in Butler v. State, 602 So. 2d 1303 (Fla. 1st DCA 1992). The defendant in that case walked into a dry-cleaning establishment carrying a pair of pants in one hand. See id. at 1304. The pants were folded over, and he had one hand inside them. The defendant directed two employees to open the cash register and give him the money, and they did as ordered. He then left. Although the employees assumed the defendant had a gun underneath the pants, they did not actually see him carrying a weapon, and in fact he was not armed. The defendant did not state that he had a weapon, did not threaten to use a weapon, and did not threaten any harm if the employees did not comply with his instructions. He simply demanded the money. The First District found the evidence insufficient to support a conviction for armed robbery, but sufficient to support a conviction for robbery “by putting in fear,” even though the defendant never made any verbal or physical threats. See id. at 1306.
The defendant in Baldwin did not use any force, brandish a weapon, utter verbal threats, or make any physical threats, and the Second District acknowledged that the “case did not involve the use of force, violence, or assault.” Id. at 637-38. Yet, discussing and relying on Flagler and Butler, the Second District ruled that the robbery charge should not have been dismissed by the trial court because a jury could find, on the alleged facts, that the defendant‘s actions “would ordinarily place a reasonable person in fear.” See id. at 638.
The Fifth District relied on Baldwin in Woods v. State, 769 So. 2d 501 (Fla. 5th DCA 2000), to affirm a “putting in fear” robbery conviction. In Woods, the defendant entered a store and asked the cashier to change his quarter. See id. at
These cases, as well as numerous others, pre-date both Dowd and Lockley, and cover both the pre-Robinson and post-Robinson legal landscape. See Robinson v. State, 692 So. 2d 883 (Fla. 1997). They apply the principle described in Baldwin that robbery “by putting in fear” in Florida “does not require conduct that is, itself, threatening or forceful.” Baldwin, 709 So. 2d at 637-38.
The Lockley panel stated that Florida robbery “involves an act causing the victim to fear death or great bodily harm.” Lockley, 632 F.3d at 1244. That is true, because handing a note to a bank teller demanding money, for example, is “an act.” But, as Baldwin and similar cases show, there is a big difference between an act which places a reasonable victim in fear and an act of threatened, attempted, or actual substantial, violent force; an act which causes fear is not necessarily one
B
The Supreme Court has told us that, in terms of “physical force,” the ACCA‘s elements clause demands substantial, violent force. See Johnson I, 559 U.S. at 138-43. Florida robbery also does not satisfy the ACCA‘s elements clause because robbery “by force,” the first of the four methods by which larceny becomes robbery in Florida, can be committed with a minimal amount of force, “be it ever so little.” Santiago v. State, 497 So. 2d 975, 976 (Fla. 4th DCA 1986).
Assuming that Florida law always required that there be resistance by the victim that is overcome by the physical force of the offender, see Robinson, 692 So. 2d at 886, it still never required threatened, attempted, or actual substantial, violent force. The Florida Supreme Court has never wavered from the principle it espoused nearly a century ago in Montsdoca, 93 So. at 159: “The degree of force used is immaterial. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim‘s resistance.” See also
Indeed, “[t]he law does not require that the victim of robbery resist to any particular extent.” Fla. Std. Jury Instr. (Crim.) 15.1. And “if the victim resists in any degree and this resistance is overcome by the physical force of the offender, the crime of robbery is complete.” Adams v. State, 295 So. 2d 114, 116 (Fla. 2d DCA 1974) (emphasis added). See also Mims v. State, 342 So. 2d 116, 117 (Fla. 3d DCA 1977); E.Y. v. State, 390 So. 2d 776, 779 (Fla. 3d DCA 1980); S.W. v. State, 513 So. 2d 1088, 1091 (Fla. 3d DCA 1987); Sanders v. State, 769 So. 2d 506, 507 (Fla. 5th DCA 2000). Thus, given minimal resistance, Florida robbery can be committed with minimal force, far less than is required under the ACCA. Florida‘s cases consistently illustrate this principle.
In Adams, the defendant ran past a woman in an alley and snatched her purse. See Adams, 295 So. 2d at 115. But, in the Second District‘s view, even this marginal force, met by marginal resistance, sufficed to sustain the defendant‘s
In Johnson, the defendant approached a woman at a bus station. See Johnson, 612 So. 2d at 690. The woman was holding $240 in her closed right fist. The defendant reached across her shoulder, raked her hand, and grabbed the money, in the process tearing a scab off one of her fingers. Even though the injury was “slight,” the First District affirmed the defendant‘s robbery conviction because the victim had resisted by keeping her fist closed, and the defendant had to use “sufficient force to remove the money.” See id. at 690-91.
Sanders, a case similar to but with even less force than Johnson, involved a defendant who approached a man holding some cash in his hands. See Sanders, 769 So. 2d at 506. The defendant asked the man for some change to make a phone call, and in order to put his left hand into his pocket for the change, the man put the cash into his right hand. While the man was concentrating on the change, the defendant grabbed the cash from the man‘s right hand. The man testified that the defendant “opened [his] hand and he grabbed [the money] at the same time.” Id. at 507. The Fifth District, in affirming the robbery conviction, explained that because the defendant “had to peel [the man‘s] fingers back in order to get the money,” the man could have been viewed as resisting. Id. “The fact that he did not put up greater resistance does not transform [the defendant‘s] act into a simple theft.” Id.
These cases illustrate the oft-applied principle that robbery “by force” in Florida requires only some minimal quantum of force; the degree of the force is immaterial. In contrast, the degree of force is not immaterial under the ACCA‘s elements clause, which requires substantial, violent force. See Johnson I, 559 U.S. at 138-43.
Indeed, the Supreme Court has distinguished the “substantial degree of force” required for a violent felony under the ACCA‘s elements clause from “[m]inor uses of force [which] may not constitute ‘violence’ in the generic sense.” United States v. Castleman, 134 S.Ct. 1405, 1411-12 (2014). In Castleman, the Court distinguished “relatively minor” acts of physical force—such as “pushing, grabbing, shoving, slapping, and hitting“—from other acts one might characterize as violent felonies under Johnson I. See id. at 1411-12 (internal quotation marks omitted). And, referring to a case it had cited with approval in Johnson I, the Court reiterated that it would be “hard to describe as violence a squeeze of the arm that
Under Florida law, as illustrated by the cases discussed above, “relatively minor” acts of physical force are enough to convict a defendant of robbery “by force.” Hayes involved “pushing,” while Adams, Johnson, and Sanders each involved “grabbing” or “squeezing.” None, however, involved substantial, violent force.
There simply is no way of getting around the conflict between Johnson I, Castleman, and the Florida cases on the one hand, and Dowd, Lockley, and their progeny on the other. If we are going to follow the analytical road map the Supreme Court has drawn for us, Florida robbery cannot categorically qualify as a violent felony under the ACCA‘s elements clause because robbery “by force” can be committed with just a minimal amount of force, “be it ever so little.” Santiago, 497 So. 2d at 976. Not surprisingly, the Ninth Circuit has recently rejected our conclusion in Lockley based on this very principle, holding that Florida robbery does not constitute an ACCA violent felony. See United States v. Geozos, 870 F.3d 890, 901 (9th Cir. 2017) (“[W]e think that the Eleventh Circuit, in focusing on the fact that Florida robbery requires a use of force sufficient to overcome the resistance of the victim, has overlooked the fact that, if the resistance is minimal,
III
When we wrongly decided in Dowd, and then Lockley, that Florida robbery is categorically a violent felony under the elements clauses of the ACCA and the career offender provision of the Sentencing Guidelines, we dug ourselves a hole. We have since made that hole a trench by adhering to those decisions without analyzing Florida law. Hopefully one day we will take a fresh look at the issue.