ORDER
Eric Koenig entered a U.S. Bank in Eau Claire, Wisconsin, pointed a loaded pistol at two different tellers in close range, and made off with $4295. Koenig and an accomplice fled the scene in a vehicle with the police in hot pursuit. After a two-mile chase that ended on foot in the deep woods, a SWAT team apprehended Koenig and his accomplice. Ignoring the SWAT team’s instructions not to move, Koenig and his accomplice struggled with each other for control of a pistol before an officer overtook Koenig and wrested the gun away.
Koenig pleaded guilty to one count of armed bank robbery, 18 U.S.C. § 2113(a), (d), and one count of possession of a firearm by a convicted felon, id. § 922(g)(1).
Koenig has told counsel that he does not want his guilty plea vacated, so counsel properly refrains from considering the adequacy of the plea colloquy or the volun-tariness of the plea. See United States v. Knox,
Counsel first considers whether Koenig could argue that the district court erred in sentencing him as an armed career criminal, see 18 U.S.C. § 924(e)(1), U.S.S.G. § 4B1.4(a), because one of his three prior convictions—a 1991 Florida aggravated assault conviction—was not a violent felony under 18 U.S.C. § 924(e)(2)(B). But this contention would be frivolous. A crime is a violent felony if it is punishable by imprisonment for more than a year and “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Under Florida law aggravated assault is “assault: (a) With a deadly weapon without intent to kill; or (b) With an intent to commit a felony.” Fla. Stat. § 784.021(1) (1991). At sentencing Koenig’s counsel asserted that the Florida statute was divisible and expressed confusion about which statutory subsection governed Koenig’s conviction. But the particular subsection is beside the point; as the district court explained, any aggravated assault conviction under § 784.021(1) qualified as a violent felony. Florida law defines assault as an “intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent,” id. § 784.011(1). Because Florida’s definition of “assault” contains the elements of violence and a threatened use of force, see, e.g., Lay v. Kremer,
Counsel next examines whether Koenig could argue that the district court erred in calculating the guidelines range, see United States v. Carter,
Counsel then considers whether Koenig could argue that the within-guidelines sentence imposed by the district court is unreasonable, see Rita v. United States,
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
