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Hylor v. United States

United States Court of Appeals, Eleventh Circuit

July 18, 2018

DEWEY HYLOR, Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket Nos. 1:16-cv-21497-UU, 1:08-cr-205278-UU-2

          Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and RESTANI, [*] Judge.

          WILLIAM PRYOR, CIRCUIT JUDGE.

         This appeal requires us to decide whether Florida attempted first-degree murder is a "violent felony" within the meaning of the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). Following his conviction for being a felon in possession of a firearm, Dewey Hylor received an enhanced sentence under the Act because he was previously convicted of three violent felonies: Florida attempted first-degree murder, Florida aggravated assault, and Florida strong-arm robbery. On post-conviction review, 28 U.S.C. § 2255, Hylor argued that none of these convictions qualifies as a violent felony, but the district court disagreed. We affirm. Florida attempted first-degree murder is a violent felony because it requires the attempted use of physical force that is capable of causing pain or injury. And we are bound by precedent to hold that Florida aggravated assault and Florida strong-arm robbery are violent felonies.

         I. BACKGROUND

         In 2008, a jury convicted Hylor of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and the district court imposed an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because he had previously committed three violent felonies. Although the presentence investigation report did not specify which convictions triggered the enhanced sentence, it stated that Hylor had been convicted of Florida attempted first-degree murder, Florida aggravated assault, and Florida strong-arm robbery. Hylor did not object to the findings of fact or the "manner in which sentence was pronounced." And we affirmed his judgment of conviction and sentence. See United States v. Hylor, 353 Fed.Appx. 361 (11th Cir. 2009).

         After filing several unsuccessful pro se motions, Hylor obtained representation and filed an application in this Court for leave to file a second or successive motion to vacate his sentence, 28 U.S.C. § 2255(h)(2). He argued that he was entitled to relief under Johnson v. United States, which held that the residual clause of the Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, 135 S.Ct. 2551, 2563 (2015). We granted the application, and a few days later, Hylor filed an amended motion to vacate his sentence in the district court.

         The district court denied Hylor's motion. It ruled that Hylor was not entitled to relief under Johnson because his prior convictions qualified as predicate convictions under the elements clause of the Act, 18 U.S.C. § 924(e)(2)(B)(i). It explained that precedent established that aggravated assault and strong-arm robbery are violent felonies. And it determined that attempted first-degree murder also satisfies the definition of violent felony. It reasoned that under Florida law, "the attempted killing of a human being requires the intended destruction of a human body, [so] an individual cannot be convicted of attempted first-degree murder without attempting to inflict bodily injury serious enough to result in death." And it stated that the "knowing or intentional causation of bodily injury necessarily involves the use of physical force." It then concluded that Hylor "ha[d] the requisite three . . . predicates to qualify him as an armed career criminal subject to the enhanced penalties under [section] 924(e)," and it issued a certificate of appealability on that question.

         II. STANDARD OF REVIEW

         "In a Section 2255 proceeding, we review legal issues de novo and factual findings [for] clear error . . . ." Jeffries v. United States, 748 F.3d 1310, 1313 (11th Cir. 2014) (quoting Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)). "Whether . . . particular conviction[s] [are] violent felon[ies] under 'the [Armed Career Criminal Act] is a question of law we consider de novo.'" United States v. Seabrooks, 839 F.3d 1326, 1338 (11th Cir. 2016) (quoting United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009)).

         III. DISCUSSION

         Hylor argues that Florida attempted first-degree murder is not a violent felony under the Armed Career Criminal Act. He maintains that the state crime can be committed by "surreptitiously poisoning [a] victim" who does not die, and that poisoning does not require enough violence to qualify as a violent felony under the federal Act. He also concedes that our precedents establish that Florida aggravated assault and strong-arm robbery qualify as violent felonies under the elements clause. We conclude that Hylor's appeal fails because attempted first-degree murder satisfies the elements clause of the Act.

         The Armed Career Criminal Act provides that a defendant convicted of being a felon in possession of a firearm or ammunition, 18 U.S.C. § 922(g)(1), must be sentenced to a mandatory minimum term of 15 years if he has three or more past convictions for a "violent felony," 18 U.S.C. § 924(e)(1). The elements clause of section 924(e) defines a "violent felony" as any crime punishable by more than one year of imprisonment that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). And we have explained that, although "the meaning of 'physical force' is a question of federal law," we are "bound by a state supreme court's interpretation of state law, including its determination of the elements of the underlying state offense." United States v. Hill, 799 F.3d 1318, 1322 (11th Cir. 2015).

         We use the categorical approach to evaluate whether a state offense has a use-of-force element. Under this approach, we "may 'look only to the statutory definitions'-i.e., the elements-of a defendant's prior offenses, and not 'to the particular facts underlying those convictions.'" Descamps v. United States, 570 U.S. 254, 261 (2013) (emphasis omitted) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). We determine whether a state statute defines only "violent felon[ies]," 18 U.S.C. ยง 924(e)(2)(B), by evaluating "the ...


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