from the United States District Court for the Southern
District of Florida D.C. Docket No. 9:15-cr-80087-RLR-1
JORDAN and JILL PRYOR, Circuit Judges, and PROCTOR, [*] District Judge.
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
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.").
PRYOR, Circuit Judge, concurring in result:
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.
Turner's Analysis Was Inconsistent with
Then-Binding Circuit Precedent.
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. Turner's analysis
categorizing Florida aggravated assault as a violent felony
under ACCA's so-called "elements clause" was as
[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). 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).
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. 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).
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). And under our own binding precedent,
"a conviction predicated ...