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United States v. Hunt

United States Court of Appeals, Eleventh Circuit

October 30, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DAVID ANDREW HUNT, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LUSION YOSHUA RICE, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DENDRICK DEMOND HALL, Defendant-Appellant.

          Appeals from the United States District Court for the Northern District of Alabama D.C. Docket No. 7:16-cr-00408-LSC-HNJ-1, 2:16-cr-00095-RDP-JHE-1, 1:16-cr-00224-RDP-HGD-1.

          Before JORDAN, GRANT, and SILER, [*] Circuit Judges.

          PER CURIAM.

         We vacate our prior opinion in this case, see United States v. Hunt, 2019 WL 3814437 (11th Cir. Aug. 14, 2019), and issue the following revised opinion.

         The defendants in these consolidated appeals-David Hunt, Lusion Rice, and Dendrick Hall-appeal their sentences under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and a provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a). Following oral argument, we affirm.

         I

         Mr. Hunt and Mr. Rice challenge the district courts' rulings that their Alabama second-degree and third-degree robbery convictions qualify as predicate felonies under the ACCA, and argue that Alabama robbery is not a "violent felony" under the ACCA's elements clause. See § 924(e)(2)(B)(i). Specifically, they contend that the use-of-force element in Alabama's robbery statute merely requires the offender to use enough force (or threat of force) to overcome the victim's resistance, and that such force does not amount to violent force within the meaning of the ACCA. See Ala. Code § 13A8-43(a).

         The ACCA requires a minimum fifteen-year sentence for any person convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and who "has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. 924(e)(1). See In re Welch, 884 F.3d 1319, 1320 (11th Cir. 2018). Under the ACCA, the term "violent felony" is defined as "any crime punishable by imprisonment for a term exceeding one year" that (1) "has as an element of use, attempted use, or threatened use of physical force against the person of another" (the "elements clause"), (2) "is burglary, arson, or extortion, [or] involves use of explosives" (the "enumerated offenses clause"), or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual clause"). See 18 U.S.C. § 924(e)(2)(B).

         Although the Supreme Court held the residual clause unconstitutional in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), convictions that satisfy the elements clause and the enumerated offenses clause are still valid. See In re Hires, 825 F.3d 1297, 1299 (11th Cir. 2016). Here, the district court concluded that the prior Alabama robbery convictions of Mr. Hunt and Mr. Rice qualified as predicate felonies under the elements clause of the ACCA.

         Under Alabama's robbery statute, a person commits robbery in the third-degree where, in the course of committing a theft, he:

(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.

Ala. Code § 13A-8-43. Second-degree robbery requires the same elements as third-degree robbery, plus aid by another person actually present. See Ala. Code § 13A-8-42. First-degree robbery has the same elements as third-degree robbery, but the person committing the robbery must also (1) be armed with a deadly weapon or dangerous instrument, or (2) cause serious physical injury to another. See Ala. Code § 13A-8-41.

         As Mr. Hunt acknowledges in his brief, see Brief for Mr. Hunt at 12, the use-of-force element is the same for first-degree, second-degree, and third-degree robbery. So, if first-degree robbery satisfies the elements clause of the ACCA, both second-degree and third-degree robbery would also satisfy the elements clause because ...


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