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United States v. Golden

United States Court of Appeals, Eleventh Circuit

January 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WARREN TRAVIS GOLDEN, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:15-cr-80087-RLR-1

          Before JORDAN and JILL PRYOR, Circuit Judges, and PROCTOR, [*] District Judge.

          PER CURIAM

         The issue in this appeal is whether a Florida conviction for aggravated assault, see Fla. Stat. § 784.021, constitutes a "crime of violence" under U.S.S.G. § 2K2.1(a)(2) cmt. n.1 (incorporating the definition of "crime of violence" from U.S.S.G. § 4B1.2). Mr. Golden contends that it does not, but his argument is foreclosed by our precedent. See Turner v. Warden Coleman FCI, 709 F.3d 1328, 1337-38 & n.6 (11th Cir. 2013). Although Turner addressed the "elements" clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i), that clause is identical to the elements clause of § 4B1.2(a)(1). See United States v. Fritts, 841 F.3d 937, 940 (11th Cir. 2016). As a result, Turner is binding.

         Mr. Golden argues that Turner did not correctly apply United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010). And some members of our court have questioned the continuing validity of Turner in light of cases like Descamps v. United States, 133 S.Ct. 2276 (2013). See In re Hunt, 835 F.3d 1277, 1288 (11th Cir. 2016) (Jill Pryor, J., concurring, joined by Wilson and Rosenbaum, JJ.). But even if Turner is flawed, that does not give us, as a later panel, the authority to disregard it. See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) ("[W]e categorically reject any exception to the prior panel precedent rule based upon a perceived defect in the prior panel's reasoning or analysis as it relates to the law in existence at that time.").

         Affirmed.

          JILL PRYOR, Circuit Judge, concurring in result:

         I concur in the majority opinion because I agree that as a panel we remain bound to follow Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), which dictates that we uphold Mr. Golden's sentence enhancement based on his prior Florida conviction for aggravated assault. I write separately to urge that the Court rehear this case en banc to revisit Turner. Below, I explain why Turner's holding was in tension with prior binding precedent and why, in light of intervening Supreme Court decisions, Turner should be overruled.

         I. Turner's Analysis Was Inconsistent with Then-Binding Circuit Precedent.

         In Turner, this Court held that a conviction under Florida's aggravated assault statute qualifies categorically as a violent felony under the Armed Career Criminal Act ("ACCA") because the offense "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); Turner, 709 F.3d at 1341.[1] Turner's analysis categorizing Florida aggravated assault as a violent felony under ACCA's so-called "elements clause" was as follows:

[T]he underlying facts of Turner's conviction are unnecessary to classify Florida aggravated assault as a violent felony here, because by its definitional terms, the offense necessarily includes an assault, which is "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so." [Fla. Stat. § 784.011] (emphasis supplied). Therefore, a conviction under section 784.021 will always include "as an element the . . . threatened use of physical force against the person of another, " and Turner's conviction for aggravated assault thus qualifies as a violent felony . . . .

709 F.3d at 1338 (citation omitted).[2] Turner was right to apply a categorical approach-that is, looking only to the statutory elements of the offense, without reference to the facts of the defendant's actual crime-in determining whether Florida's aggravated assault statute satisfies the elements clause. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013). For the offense to satisfy the definition of "violent felony" under the elements clause, "the least of the acts criminalized" must have as an element the actual, attempted, or threatened use of physical force against another person. Id. (alteration and internal quotation marks omitted).

         Turner reached the wrong conclusion, however, because it failed to consider the least of the acts Florida criminalizes in its aggravated assault statute. In Turner, the court assumed based on the wording of the Florida statute that the offense of aggravated assault necessarily involves an intentional act-a mens rea the elements clause requires.[3] See United States v. Palomino Garcia, 606 F.3d 1317, 1334-36 (11th Cir. 2010) (emphasizing that "use of physical force" in the elements clause can only be satisfied by intentional conduct). In making this assumption without consulting Florida caselaw, Turner overlooked our earlier holding that, "in determining whether a conviction . . . is a 'crime of violence' for sentencing enhancement purposes, we are bound by Florida courts' determination and construction of the substantive elements of that state offense." United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012).

         If in Turner we had looked to Florida caselaw, we would have found that the State may secure a conviction under the aggravated assault statute by offering proof of less than intentional conduct, including recklessness. See, e.g., Kelly v. State, 552 So.2d 206, 208 (Fla. Dist. Ct. App. 1989) ("Where . . . there is no proof of intentional assault on the victim, that proof may be supplied by proof of conduct equivalent to culpable negligence . . . or by proof of willful and reckless disregard for the safety of others."); LaValley v. State, 633 So.2d 1126, 1127 (Fla. Dist. Ct. App. 1994).[4] And under our own binding precedent, "a conviction predicated ...


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