Appeals from the United States District Court for the
Northern District of Alabama D.C. Docket No.
JORDAN, GRANT, and SILER, [*] Circuit Judges.
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.
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.
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
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).
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.
Alabama's robbery statute, a person commits robbery in
the third-degree where, in the course of committing a theft,
(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.
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 ...